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 WilsonI cant say anything though I am stupid lucky. I have a 75/75 line01/29/2015 - 11:27pm
Matthew Wilsonthat isnt awful 1.2MBs, but yeah 100bucks a month is over priced to all hell. ps 8mbs=1MBs01/29/2015 - 11:24pm
ZippyDSMleehttp://www.speedtest.net/my-result/410086446201/29/2015 - 9:12pm
ZippyDSMleeMatthew Wilson Dunlap, TN, its the only game in town and they only started in 08 or so.01/29/2015 - 9:12pm
MechaCrashThe explanation for the misanthropy of the character in Hatred comes from "we want to be super edgy and get those controversy dollars."01/29/2015 - 8:34pm
Andrew EisenI'm interested in giving it a try. I think it has some cool ideas but I haven't been "feeling it" when watching continuous gameplay.01/29/2015 - 8:04pm
Matthew Wilsonif you dont know, the code name STEAM demo is out, and it it downloading very slowly. It might be more popular that I thought, or it could just be the eshop.01/29/2015 - 8:02pm
Goth_SkunkPlayer/Playable Character, yes. As opposed to the NPC.01/29/2015 - 7:36pm
Andrew EisenOh, Player Character! Heh, that one took me a few moments!01/29/2015 - 7:29pm
Goth_SkunkIt really bothers me that there is no explanation for the PC's misanthropy. Even the Saw movie series, despite the level of violence in them, had a premise that fascinated me. The only thing about Hatred that fascinates me is the controversy.01/29/2015 - 7:27pm
Goth_SkunkI can't think of a time a game has made me simultaneously want to both buy it and not buy it. On the one hand, I find the premise disturbing and repulsive. On the other hand, I find the controversy fascinating and want to play it just to say I did.01/29/2015 - 7:25pm
Andrew EisenTrailer for new Van Damme movie, Pound of Flesh. "They just stole the wrong man's kidney!" http://vimeo.com/11808880501/29/2015 - 7:24pm
Andrew EisenNew Hatred trailer. Destructible environments, vehicles, light buildings and people on fire! http://www.gametrailers.com/videos/7bzwzs/hatred-devastation-gameplay-trailer01/29/2015 - 7:12pm
Goth_Skunk@WonderKarp: And that's why I don't read or watch mainstream news.01/29/2015 - 5:06pm
Matthew Wilsonzip is it KB or kb? if its KB its MB, if its kb is mb. ether way where do you live that you are getting ripped off that badly?01/29/2015 - 4:41pm
ZippyDSMleeI has a whole 1MB(mb mabye, 1000KBPS) for a whole...100$ a month ;_;01/29/2015 - 4:24pm
WonderkarpFCC appears to be kicking ass today01/29/2015 - 4:11pm
WonderkarpI found this neat. Shows the different ways different websites tell the same story. Not VG Related, but its neat https://i.imgur.com/3m6xOfE.jpg01/29/2015 - 2:12pm
Matthew Wilsonnp I am still suprised that the fcc did it, but I still do not trust the chairman yet.01/29/2015 - 2:11pm
Andrew EisenYeah, what I mean is I'm fortunate enough to live in an area where I have the option of up to 50Mbps if I want to pay for it. Meant that as an anecdote; didn't mean it to come across as a "you're wrong!" Sorry 'bout that!01/29/2015 - 2:06pm
 

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