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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Matthew Wilsonofcourse not he did a video on the new civ game just yesterday.10/24/2014 - 10:32am
Papa MidnightYou think a bit of cancer surgery would keep The Cynical Brit from railing about bad PC ports? Not a chance! :)10/24/2014 - 10:15am
Matthew Wilsonmight be a bit soon only becouse he got out of cancer surgery last week, but ask his email is public.10/24/2014 - 9:56am
Papa MidnightHell, set up a Google Hangout or Skype call, and I'll be happy to join in.10/24/2014 - 9:34am
Papa MidnightBring Totalbiscuit on SuperPAC for Saturday!10/24/2014 - 9:32am
CMinerThere is no journalism/ethics concern that you've raised that would be made weaker by not raising it under the umbrella of GamerGate.10/24/2014 - 9:32am
CMinerNeo: You want to start some healing? Stop using the GamerGate hashtag. Even if you don't believe that it originated with harassers, you have to see that it's been irrevocably tainted by their actions.10/24/2014 - 9:31am
MaskedPixelanteGOG has a four day countdown to their next publisher. All hints suggest Disney, but no guarantee it'll be LucasArts.10/24/2014 - 6:58am
Neo_DrKefkawith a neutral party Moderating it. I've been waiting a long time for a GamerGate to happen but now all I want is the healing to start. Weird huh? Gamers don't need to be attacking gamers we should all be on the same side10/24/2014 - 12:39am
Neo_DrKefkaRight now from what I seen your tweet and the other guys tweet there are hard feelings. Until we start a dialogue with each other I think it will get worse before it will get better. I hope you guys work something out meet in a neutral stream10/24/2014 - 12:37am
Neo_DrKefkaThanks James. Even if a hot/hard headed person likes me thinks the public needs to sit down and discuss this together. We all might not agree right now but if the public does not start talking to each other we are not going anywhere.10/24/2014 - 12:36am
james_fudgeHey guys I had a nap because, getting old! I'll take a look.10/24/2014 - 12:01am
Matthew Wilsonjames needs to contact Totalbiscuit than10/23/2014 - 10:07pm
Neo_DrKefkaJames said earlier he went into a stream earlier informed them who he was and they didn't care. If James is trying to talk lets set something up?10/23/2014 - 9:38pm
Matthew WilsonTotalbiscuit has been trying for months, no one that is anti gg seems to want to talk with him on camera10/23/2014 - 9:20pm
Neo_DrKefkaHey James check your twitter. Check with Totalbiscuit see if you can get a round table discussion stream going see if he can get some pro gg people and you can get some gamejournopros. Both sides have been hurt, doxxed its time every1 sits down and talks10/23/2014 - 9:05pm
Matthew Wilsonthe wiiu will support up to 8 gc controllers http://www.smashbros.com/us/howto/entry10.html10/23/2014 - 7:50pm
quiknkoldmewtwo is a timed free exclusive. you can purchase him if you dont have both.10/23/2014 - 7:15pm
Neo_DrKefka@Monte A month and a half ago we had a lot of streams about solutions now all the streams are KingofPol styled rants about getting drunk. All Gamergate is about to many is for people to use the movement to jump start careers.10/23/2014 - 7:12pm
Neo_DrKefkaWhose stream where you in James?10/23/2014 - 7:02pm
 

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