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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james_fudgeAlso http://www.breitbart.com/Breitbart-London/2014/09/17/Exposed-the-secret-mailing-list-of-the-gaming-journalism-elite09/17/2014 - 4:29pm
Andrew EisenI read the Kotaku story. Nowhere does it say anything close to "Gamers are white bigoted sexist losers." It's commenting specifically on the crap being slung at people discussing gender issues in games. So, what's the problem?09/17/2014 - 4:06pm
Andrew EisenYeah, I can imagine Spiderwoman posed like in your second link.09/17/2014 - 4:00pm
Andrew EisenThat's not the same pose. Spiderman (who is wearing an actual outfit rather than body paint) is crouched low to the ground. Kinda like a spider! Spiderwoman has her butt up in the air like she's waiting to be mounted.09/17/2014 - 3:59pm
quiknkoldAndrew Eisen : Kotaku did a whiole article on it, as did others http://kotaku.com/we-might-be-witnessing-the-death-of-an-identity-162820307909/17/2014 - 3:59pm
CMinerQuiknkold: Do you think that there are no cases where a piece of art (painting, movie, videogame, comic cover, etc) is unambiguously sexist?09/17/2014 - 3:58pm
quiknkoldand can you imagine if Spiderwoman was posed like this? http://goodcomics.comicbookresources.com/wp-content/uploads/2013/02/spider-man1.jpg09/17/2014 - 3:58pm
Andrew EisenWhat games outlet is writing articles saying "Gamers are white bigoted sexist losers"? What examples have you seen of journalists being paid off for favorable reviews? Who's shaming what now? What's the problem with critiquing the Spiderwoman cover?09/17/2014 - 3:57pm
james_fudgeWell there's def "politics" involved in this issue. The movement was hamstrung by bad behavior and illegal activites here. We would have covered it more if not for those unforutnate happenings.09/17/2014 - 3:56pm
quiknkoldhttp://i.imgur.com/v3p8Bwf.jpg Here you go EZacharyKnight. Spidermans Buttcrack.09/17/2014 - 3:56pm
quiknkoldwhile another person doesnt see it09/17/2014 - 3:56pm
quiknkoldJames_fudge : I feel like the people challenging Games are the same people who Challenge Art because Michaelangelo's David shows Wang. The problem is, alot of things with Games are left to the eye of the beholder. One Person see's Sexist Antiwomen views.09/17/2014 - 3:55pm
E. Zachary Knightquiknkold, I don't recall Spider-man's costume conforming to the contour of his buttcrack.09/17/2014 - 3:54pm
quiknkoldIts the same Agenda Fueled Journalism youd find on Fox News or MSNBC. I appreciate Gamepolitics for just stating the facts.09/17/2014 - 3:54pm
james_fudgeQuiknold: you're entitled to your opinion on creatives being left alone. Others are entitled to their opinions that they should be challenged.09/17/2014 - 3:53pm
quiknkoldI can point specifically to the Spiderwoman Milos Manara cover as an example. Not strictly VG Related, its still the same example of journalists attacking Milos's artwork, claiming its sexist, when its the exact same pose Spider-man has done on a cover.09/17/2014 - 3:52pm
quiknkolddevices, and then we can discus the merits of the game. and then there's the people exchanging money and other things to game journalists for favorable reviews and articles, while also shaming those who may criticize these articles09/17/2014 - 3:51pm
quiknkoldIts more about those 20 some odd articles saying Gamers are white bigoted sexist losers. I want there to be a discussion in videogames. Good positive discussion. but I also think the Artists involved in crafting the game should be left alone to their09/17/2014 - 3:49pm
MaskedPixelantehttp://www.joystiq.com/2014/09/17/ice-climbers-wont-be-in-the-new-smash-bros-and-heres-why/ Sakurai explains why Ice Climbers had to get cut from the roster. Spoiler alert, it's exactly why people thought they got cut.09/17/2014 - 3:47pm
Andrew EisenAgenda? What exactly is this agenda and what does it have to do with ethics and transparency in game journalism? I mean, goodness, you make it sound like GamerGate really IS about silencing people from talking about gender issues in video games.09/17/2014 - 3:03pm
 

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