We've seen a fair amount of euphoria emerge from the video game community in response to Monday's Supreme Court decision. The ruling has been hailed by various outlets as a validation of games as speech, games as art, and games as analogous under the law to other media like books and films.
Monday's ruling is unquestionably a win for games, but I'm not so sure it's a win worth celebrating. While I'm delighted that seven Justices saw fit to protect games under the First Amendment, their formal opinions on the case raise serious questions about their understanding of games and their ability to grasp the defining characteristics of the medium.
Even the Justices themselves express deeply ambivalent reactions to their own ruling, with Alito and Roberts issuing separate statements taking issue with Scalia's majority opinion, and Thomas and Breyer (who often collide on other issues) offering strongly worded dissenting remarks.
So, what on the surface looks like a landslide decision (7-2) is in reality three Justices who share Scalia's point of view (see my previous post for details) and four who take issue or strongly disagree with many of his assertions. As a matter of strict scrutiny constitutional law, games won the day; but as cultural validation, the ruling looks like a familiar a mish-mash of uncertainty and fear.
People (like me) who believe video games can be powerful artistic forms of expression will find much to be troubled by in Monday's ruling. Scalia's majority opinion goes out of its way to diminish the uniquely interactive nature of games - he equates them with Choose Your Own Adventure books - and in so doing he privileges the narrative dimension of games over their nature as complex systems that operate rhetorically very differently from literature or film.
Alito's response (which I find more thoughtul) worries much more about the extraordinarily immersive experiences games can deliver, and he expresses concern that we don't yet properly understand how this “new and rapidly evolving technology” works and why it should or shouldn't concern us.
Of all the Justices, Alito is the one who took it upon himself to research video games by playing them himself and observing their contents firsthand. He reports that “the violence is astounding”; he notes a preponderance of stereotyped minorities, and he cautions that “We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.”
Again, Alito sided with the majority because the California law was poorly written and failed strict scrutiny. But his opinion strikes me as more valuable and informed than Scalia's because he accepts what so many of us have been saying for years: video games, at their best, deliver a substantively different experience than other media, and this experience can profoundly affect the player emotionally and intellectually.
Put another way, if Jim Gee, Ian Bogost, and Jane McGonigal are right (or even if they're only partially right) about the transformative power of games to impact human behavior, maybe we oughtn't be so thrilled about Scalia, Kennedy, Ginsberg, and Sotomayor lumping them together as analogous to other media, albeit with wiz-bang tech.
Maybe, as Alito and Breyer suggest (Thomas argues an originalist view that essentially ignores games), we ought to pay more careful attention to how games work and what they can do for good, ill, and otherwise. Doing so acknowledges that these newfangled electronic gizmos may fall under free speech protection, but they aren't movies and they certainly aren't books. California may have written an ill-conceived and unenforceable law, but that doesn't mean kids shouldn't be prohibited from buying games that may mess with their heads in ways we don't fully understand.
Ironically, maybe our case, as gamers who understand the transformative power of games, would be better served by a loss that acknowledges the medium's true nature, rather than a win from a court that states: “Even if we can see in them 'nothing of any possible value to society..., they are as much entitled to the protection of free speech as the best of literature.'”