Acting, Kinect and Protected Speech

December 10, 2010 -

Is acting protected speech, and if so, is acting in a video game - especially in the age of motion sensing console devices - protected speech as well? This is the theory thrown out in a thought provoking post called "Is Playing a Video Game Conduct or Speech? Lessons from Microsoft Kinect" over at Law Law Land Blog.

Steven Smith kicks that idea around a bit, comparing the acting kids do in video games to the actions in a school play. The idea begins at GameStop, where Smith is buying a game for his daughter:

I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen.

Which leads him to a thought about video games and free speech:

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

This brings it back to the oral arguments that took place on November 2 before the Supreme Court and a question from Justice Elena Kagan. She asked: "Do you think video games are speech in the first instance? Because you could look at these games and say they are the modern-day equivalent of monopoly sets. They are games. They are things that people use to compete. You know, when you think about some of them — the first video game was Pong. It was playing tennis on your TV. How is that speech at all?"

Smith talks about how the EMA handled the question:

The Entertainment Merchants Association and the State of California both assumed that the games were speech, in the sense of the creative expression of the artists and programmers who made the games. Where they differed was simply over the issue of whether the state had a compelling basis to regulate this assumed speech. But Kagan was challenging the underlying assumption, asking the more fundamental question, are these games speech at all? And does it depend on the nature of the game (Monopoly and Pong, with little or no storyline, versus Dungeons and Dragons and Grand Theft Auto, which are all about the story — and, in the case of D&D, the basement black lights, Cheetos, and Sprite).

Which leads to a series of important points:

To his credit, Paul Smith, counsel for the Entertainment Merchants Association, handled the question with aplomb. He argued that the definitions in the law contain an underlying presumption that the games at issue contain a narrative structure, i.e., a plot of some kind. He then argued that the players of such plot-driven games are like actors, “helping to make the plot, determine what happens in the events that appear on the screen, just as an actor helps determine what happens in a play. You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own. That’s what makes them different and in many ways wonderful.”

That is, in my humble opinion, the real point about video games and why they deserve First Amendment protection, no matter how violent some of them may be. We allow minors to act in very violent plays, movies and television shows. As far as I am aware, no state has sought to prohibit children from acting in such creative works. (They may need parental permission under labor laws or for private, contractual liability reasons; but no one says that the kids themselves cannot get together and act out whatever horrors their minds can conjure up.) Video games simply expand the relevant stage on which these games of pretend may be acted out.

Smith goes on to say that anyone can be a virtual actor thanks to video games. Sometimes players have to follow a script and sometimes they engage in violent acts, but no more than a child actor playing a role in a violent movie or an adult-themed TV show. This closing thought says it best:

The First Amendment not only protects the William Shakespeares, Alfred Hitchcocks, Mario Puzos and Take Twos of the world — it also protects the actors (including child actors) who wish to play Brutus, Norman Bates, Michael Corleone, or CJ Johnson.

 
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Uncharted NEShttp://kotaku.com/zelda-f-zero-coming-to-mario-kart-8-162715073008/26/2014 - 11:17pm
Uncharted NESAlso $8 for each or $12 for both.08/26/2014 - 11:16pm
Uncharted NESZelda, Animal Crossing Coming To Mario Kart 8.08/26/2014 - 11:15pm
Andrew EisenNintendo has worked with plenty of western or non-Japan devs. It partners more often with devs in its own country but I wouldn't say it doesn't like western devs.08/26/2014 - 7:36pm
Matthew WilsonOr... give it to the studio that just formed from the old Darksiders guys. yeah I know outside of Retro they do not like working with western devs.08/26/2014 - 6:46pm
MechaTama31They should have just handed the Zelda reins to the team responsible for Okami, because they out-Zelda-ed Zelda.08/26/2014 - 6:08pm
Uncharted NESI miss Nintendo-Capcom Zelda games. ALTTP on the GBA was my first real time really playing through that game. And you know what, it was fun. :P08/26/2014 - 5:42pm
IanC3 and a half amazing games, since Capcom did the A Link to the Past port, and the Four Swords game that was on the cart. So thats 4 games then, id guess.08/26/2014 - 5:03pm
MaskedPixelanteDepends on who's teaming up with what. Zelda plus Capcom gave us three amazing games. Zelda plus Phillips gave us Youtube Poop.08/26/2014 - 3:25pm
E. Zachary KnightNintendo has had a fairly decent track record with teaming up with external development houses to make games based on their IP, at least recently. I hope they keep it up.08/26/2014 - 3:14pm
IanCThe idea of the Tekken team making a Pokémon fighting game is A: funny and B: clever.08/26/2014 - 2:39pm
IanCBlizzard took the Act 4 ending cut scene out of Diablo 3 Ultimate Evil Edition. So if you want to see the final cut scene from the base game better go look on youtube or something.08/26/2014 - 2:38pm
Andrew EisenI hope Magikarp is playable!08/26/2014 - 11:14am
MaskedPixelantehttp://www.joystiq.com/2014/08/26/psa-psn-gets-knocked-down-again/ Hey, guess what happened again.08/26/2014 - 9:51am
MaskedPixelantehttp://www.joystiq.com/2014/08/26/tekken-style-pokemon-fighter-unveiled-for-arcades-in-2015/ Continuing Nintendo's plan of letting other devs take a stab at their IPs, NB is doing a Pokemon fighting game based on Tekken.08/26/2014 - 9:41am
MaskedPixelantehttps://www.youtube.com/watch?v=PsB1e-1BB4Y John Oliver talks about the wage gap between women and men.08/26/2014 - 7:07am
Papa MidnightNew York Times: http://www.nytimes.com/2014/08/26/technology/amazon-nears-a-deal-for-twitch.html?_r=008/25/2014 - 5:23pm
Papa MidnightThe Verge: http://www.theverge.com/2014/8/25/6066295/amazon-reportedly-buying-twitch-for-over-1-billion08/25/2014 - 5:23pm
Papa MidnightIt's official: Amazon is buying Twitch for $970 Million USD.08/25/2014 - 5:22pm
Andrew EisenMy home state of CA is suffering one of the worst droughts on record but that didn't stop me from doing the ALS Ice Bucket Challenge in my own special way. https://www.youtube.com/watch?v=Fjskkr3PpPg08/25/2014 - 3:57pm
 

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