Harmful Matter: Gaming’s Freedom of Speech

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Welcome to the first Monday in October. If you're a gamer, this could be a very important day.

Why? Because today opens a new session of the United States Supreme Court. By the time it ends, one year from now, they'll hand down a decision on Schwarzenegger v. EMA/ESA, and that could fundamentally change how video games are sold — or not sold — in this country. As it stands, the only thing the Entertainment Software Associate has in its corner right now is a little something called the First Amendment.

It's easier if you picture them naked.

So when Electronic Arts announced last Friday their decision to remove "Taliban" from their upcoming Medal of Honor relaunch in the wake of a media controversy (which, full disclosure, I also commented on), a lot of people (including a few on this site) immediately went to Defcon 1. This, they contended, signaled the death of gaming's freedom of speech. Just as we braced for battle, a major power went into full retreat.

Well, no. Those are different issues. Here's why. 


First, if you haven't actually read the law in question, you really should. AB 1792 essentially seeks to criminalize the sale or rental of any game to any minor "that enables the player to virtually inflict serious injury upon human beings or characters with substantially human characteristics in a manner that is especially heinous, atrocious, or cruel" by reclassifying them as "harmful matter." Decoding that phrase, in the California Penal Code, "harmful matter" is hardcore pornography. Governor Schwarzenegger signed it into law in 2005, and the 9th Circuit Court of Appeals struck it down seconds later.

Taken to extremes, under the "harmful matter" classification,  a 20-year-old playing Halo: Reach at home while his 17-year-old sister reads a book in the room is subject to a $2000 fine and/or a year in jail. To say nothing if he'd rented or bought the game for her.

The same 20-year-old wouldn't face those penalties if he merely watched Saving Private Ryan or The Godfather, though both have higher, and arguably more grotesque, body counts.

That, to me, is a clear violation of several personal freedoms, expression being one. Are there games minors should not be exposed to? Absolutely, and it's the parents' job to make the call, not the government's. In our nation's history, legislation censoring what books we can read, what film and TV shows we can watch, what music we listen to, or what games we can play has never been ruled constitutional. That could change less than a month from now.

Halo Reach
Corruptor of youth.

Interestingly, AB 1792 specifically excludes "any game in which the visual depiction of violence occurs as the result of simultaneous competition between two or more players," so if our theoretical twentysomething was playing Reach multiplayer, he'd be in the clear. It's apparently OK to maim and kill other people, just not soulless A.I. bots.

It also makes exceptions for content that has "serious literary, artistic, political, or scientific value for minors," for anyone who wants to jump into the games-as-art debate. Roger Ebert doesn't think they are. Neither does a large chunk of people who make, write about, and play video games. Likely they feel the same way about porn.

Good thing, too, because as "harmful matter," games would be treated exactly the same way porn is. AB 1792's companion bill, AB 1793, requires (or re-requires, since this already applies to "harmful matter") that retailers create M-rated sections, separate from the regular items on display and labeled "Adults Only." The games are removed from the public eye, and gamers — whose average age in somewhere in the mid-30s — get a nice little stigma attached for good measure. Just to make sure you know, if you weren't already aware, that you're a bad human for playing these things.

By contrast, EA didn't actually have to do anything. Nobody told them or the Medal of Honor team they couldn't cast players as "Taliban" in multiplayer mode. If anything, they said EA shouldn't do it. Maybe that's a small distinction to you, but the motivations are completely different. The first is censorship, pure and simple. The second registers disapproval. Perhaps strong disapproval, but the phrasing makes it a request, not a command.

Medal of Honor Taliban
Product of neglectful parenting.

When I spoke to Medal of Honor's executive producer, Greg Goodrich, and again in the statement he issued last Friday, he saw it as a matter of authenticity, not free speech. His game takes place in 2002 Afghanistan, where the Taliban were in charge. The decision to back down came from Greg's respect for the soldiers and their families, and the very real pain this might cause them, not because he used a bad word. In all honesty, using "Taliban" instead of plain old "terrorist always felt incongruous with the whole "honor the soldier" philosophy that's always been Medal of Honor's main drive.

Anyway, let's not pretend the First Amendment is a blank check. Try shouting "FIRE!" in a crowded theater, or publish a patently false accusation that could damage someone's livelihood, and you'll learn a lot about the limits to free speech. Some things, you just shouldn't say, in the same way there are some things you just shouldn't do.

I know a large contingent of gamers like to throw out "It's just a game!" to justify any and everything their hobby might do. That's lazy thinking. Is it really impossible to cross a line — or indeed, to have lines at all — just because it’s not "real?"

Fine, we can represent a terrorist organization dedicated to killing Americans and then kill Americans. It's just pixels. Whatever, no big deal. How about rape?

Is it acceptable to rape someone in a video game? Before you scoff, thinking to yourself "They’ll never put rape in a video game, no way," surprise, surprise, they already have. Repeatedly. Custer’s Revenge simulated the 8-bit rape of a Native American prisoner on the Atari 2600. Nearly a quarter-century later, RapeLay, a 2006 PC game released in Japan, tasked you with stalking and raping a 10-year-old girl.
Yeah. There are lines.  

Justice Scalia often smokes fools in Call of Duty multiplayer.

If, intentionally or otherwise, Medal of Honor crossed one — and many people think they did — I'd call uncrossing it a good example of self-censorship. When one word threatens to derail the intent of your work, the smart man ditches that word.

And I seriously doubt it took much work. The Medal of Honor multiplayer I experenced in late September didn't show any sign of the Taliban. I saw "Insurgents" who were described as either Chechnin or Uzbek…groups with suspected ties to the Taliban, but not actual Taliban members. Nobody uses the word "Taliban" in the multiplayer mode. If you want to convince me somebody stomped on EA's freedom of speech, first show me the actual speech. I sure as hell couldn't find it, and believe me, I looked.

Regardless of how deeply the Taliban were embedded in Medal of Honor, EA did what it should've done, without government intrusion. We are a self-regulating industry, like film, like television. We have our ratings system, and for the most part, it works. They didn't give up their freedom of speech…they exercised it, in the best possible way: by choosing to not say something they felt might be inappropriate.

The philosophy behind AB 1792 would have ordered them into silence first. That is true censorship, and that is unacceptable.

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