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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MechaCrashOh, no, I totally agree with you that Iron is being a prick and needs to stop, but isn't the usual GG suggesstion for harassment "just ignore it, grow a thicker skin, don't report it"?05/30/2015 - 9:22am
Conster...and even the more stubborn and annoying ones are downright pleasant when compared to IronPatriot's behavior. His behavior is harassment regardless of whether it's aimed at pro-GG or anti-GG people, and it has to stop.05/30/2015 - 8:55am
ConsterMechaCrash: is this about Goth_Skunk's complaint against IronPatriot? Because while I'm anti-GG and strongly disagree with a lot of the stuff the pro-GG people on here say, most of them disapprove of harassment, even if it's 'in the name of GamerGate'...05/30/2015 - 8:55am
MechaCrashMan, some people are just...so immune to noticing irony, you know? The mind boggles.05/30/2015 - 8:35am
InfophileBut hey, I'm not a mod here. It's up to them05/30/2015 - 7:36am
InfophileThat's really not conducive to a good discussion. It just puts people on the defensive. So yeah, I really think IP should try to hold back on that. I'm not sure a ban is in order unless they show they can't or won't change, though05/30/2015 - 7:36am
InfophileLooking through IP's recent posts, there are some that do add to the discussion. There are also a handful which add nothing and are just jabs or point-scoring. It feels like IP is treating the comments more like a battleground than a discussion, honestly05/30/2015 - 7:34am
MattsworknameAhh, that explains why I wasn't aware. I don't follow, like ,nor care for soccer05/30/2015 - 6:50am
Goth_SkunkThe top dog at FIFA.05/30/2015 - 6:49am
MattsworknameWhose Blatter conster?05/30/2015 - 6:42am
ConsterSpeaking of non-video games for a second, I'm seriously disappointed in people for re-electing Blatter, and disgusted by his speech afterwards.05/30/2015 - 6:32am
ConsterHe's at least 5 times as bad as GS.05/30/2015 - 6:31am
Goth_SkunkEIC of Gameranx apologizes for his recent conduct: http://ow.ly/NDBxn Frankly, I'm surprised this wasn't posted sooner.05/30/2015 - 6:31am
ConsterGS does have a point: IP, on his own, causes at least as much harassment, insulting, and holier-than-thou'ness, as all the pro-GG people on this site combined.05/30/2015 - 6:30am
WonderkarpI am not sure I agree that its Harassment, But I do agree that he doesnt bring anything to the conversation. Its too the point where whenever I see his name, I just Thumbs down and move on. Its all buzz words and accusations and rarely civil05/30/2015 - 6:22am
MattsworknameWell, best of luck on that, but im not holding my breath.05/30/2015 - 5:04am
Goth_SkunkI believe the time to pull the plug was long ago, but kept quiet knowing full well Iron Patriot cannot help themself. There is a mountain of evidence to support my claim. In my opinion, it is harassment, and it needs to stop.05/30/2015 - 4:35am
Goth_SkunkIt's not getting me down. Far from it. Nevertheless, the conduct is unacceptable and has gone far beyond what any patient human being ought to be expected to tolerate.05/30/2015 - 4:34am
MattsworknameDont let him get you down Goth, I just go look at kitten videos for a bit to get my posistive mood back05/30/2015 - 4:27am
Goth_SkunkIt is not conducive to a welcoming, open-minded environment that this site is supposed to be.05/30/2015 - 2:33am
 

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