Sunday, November 07, 2010

Free speech and the nose of the camel ~ By Phil Elmore

Phil's excellent column discusses a case being considered by the Supreme Court of the United States, involving a California law that is meant to prevent minors from purchasing "violent" video games. However, it really is quite a bit deeper than just the discussion on banning violent video games, as the Supreme Court would be deciding on where to draw the line on "Freedom of Expression," which refers to the free speech and free press clauses of the 1st Amendment to the Constitution of the United States. As I read on, there are many different philosophical differences concerning the freedom of expression:
Probably no other provision of the Constitution has given rise to so many different views with respect to its underlying philosophical foundations, and hence proper interpretive framework, as has the guarantee of freedom of expression -- the free speech and free press clauses. The argument has been fought out among the commentators. "The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases." Some of the commentators argue in behalf of a complex of values, none of which by itself is sufficient to support a broad-based protection of freedom of expression. Others would limit the basis of the First Amendment to one only among a constellation of possible values and would therefore limit coverage or degree of protection of the speech and press clauses.
How the Supreme Court decides in this case could have significant impact on future interpretations of the free speech and free press clauses. Here is a case where the court will decide if society can depend on it's own ability to use the free market system to protect civilization from violence, or if we must depend on the government (Federal, state or local) to protect us. To use the free market system to protect ourselves, it will depend on parental supervision and our liberty to decide for ourselves what is moral or immoral, and safe or dangerous. To depend on the government to do that for us is to invite the camel into our tent.

In the video below, a lady is taking on the maker of a video game that she feels offended by. If you listen closely, she is suggesting NOT a government ban on the game, but instead, asking for the company to pull the plug on the product. This is an example of what the free market method of protecting ourselves would be, and where we "vote" with our pocketbook:

Video provided by CommentCrazed

In my humble opinion, the nose of the camel is definitely already in the tent. We already have a large number of things that the government controls "for our own good," or "for the children." You know, things like San Francisco banning "happy meals." That may be a case where the camel stuck his rear end into the tent (and it ain't a pretty smell, and in fact, it just plain stinks). Just sayin'...

I have used before the phrase "the camel's nose in the tent." If you've never really thought about what this means, you should. When a camel pokes his nose into your tent, it's only a matter of time before the rest of him follows.

Upholding the constitutionality of California's vaguely worded video game restrictions would serve only to force the camel of censorship under the tent-flap of society. Such a ruling would clear the path for further infringements on freedom of speech, not the least of which is to empower your government to decide, arbitrarily and capriciously, which expressions of art and entertainment are somehow legitimate. If this issue is to be decided at all, it must be decided by the voters, who collectively could choose to alter the protections of the First Amendment.

Absent so significant an intervention by the citizens it protects, the Constitution and its Bill of Rights should be respected. The courts have no business regulating the creation or sale of art. Video games are art. If they are not, a host of other artistic expressions become fair game for regulation – and millions of American citizens are about to find out just how large and foul-smelling is an entire camel standing in their living rooms.
Free speech and the nose of the camel
By Phil Elmore

Posted: November 04, 2010 ~ 1:00 am Eastern

© 2010

I remember the day my father brought home our first Atari game system. It wasn't long before we were engaged in furious gunfights, as stick-figure cowboys hurled pixel blocks at each other. I could not know then that two decades later it would be possible to engage in immersive, first-person firefights with real people from around the world.

Games so simple they can now be played online in Web browsers or on the tiny screen of your wireless phone, games with file sizes so comparatively small that a handheld plastic game unit can hold a library of hundreds of "classic" video games, have been supplanted by serious "games" whose complex graphics and high-fidelity sound border on virtual reality. To examine the history and development of video games is to be at once nostalgic and awed, as the now-quaint pastimes of thirtysomethings' childhoods have become the juggernaut of an interactive entertainment industry. That industry is poised to overtake worldwide music sales through 2011, worth nearly 50 billion projected dollars.

Your government can't have that.

As PCWorld reported Tuesday, the United States Supreme Court is poised to rule on whether your government can "protect" you – or "the children," who are so often invoked as a category to histrionics, hand-wringing and the strains of tiny violins – from "violence" in video games. As J.R. Raphael wrote:
According to [the wording of a California law forbidding sales of "violent" video games to minors], a violent video game would be defined as one "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being" in a manner that's "patently offensive," appeals to a person's "deviant or morbid interests," and lacks "serious literary, artistic, political, or scientific value." ...

Even if you accept the "video games are different" argument, opening the door to government-controlled content regulation is asking for trouble. Do we want to make the First Amendment a medium-specific form of protection? … If this law is green-lighted, we'd better brace ourselves for an awful lot of asterisks under America's "free speech" header.
Raphael correctly points out that this isn't about video games at all, but rather the nature of freedom of speech. What is a video game? It is, when it is sold for profit, arguably a form of commercial speech. In and of itself it is also (and primarily) an artistic expression. Regardless of whether you consider it so, the average video game (particularly today) is the product of a tremendous amount of artistic input and merit, from the design of its characters to its music and voice-acting to its often cinematic interactivity, its pacing and its overall presentation. All of this is true before we even begin to consider the hours of effort in coding, debugging, play testing and implementation of the game's software.

Whether that artistic merit and those hundreds (if not thousands) of hours of effort produce a serene, puzzle-solving, picturesque classic (remember "Myst"?), a light-hearted adventure series (the name "Monkey Island" comes to mind), or a visceral and blood-soaked survival-horror game in which players shoot zombies in the head (or become zombies themselves), there is no denying the tremendous industry and art involved in such a production. How is it, then, that we are repeatedly told that blasphemous, offensive and outrageous "art" (a crucifix submerged in urine, the Virgin Mary rendered in dung, dead animals sawed in half, morbidly nude statues of Paris Hilton and other abominations that have figured in news reports over the years) is protected free speech ... and yet far less offensive but "violent" video games must be rebuked, restricted and regulated?

Worryingly, Businessweek's Jesse Holland says the Supreme Court has "expressed sympathy" for the California law. Holland did note, however, that "Antonin Scalia, Ruth Bader Ginsburg and Anthony Kennedy ... noted that entertainment forms like comic books, movies, rap music and even children's fairy tales can also be violent but are not regulated by the state." Those justices, Holland reports, have said the California law might be too vaguely worded to pass constitutional muster. The key to the justices' debate seems to be whether the law draws "sensible distinctions" among the forms of entertainment it seeks to regulate.


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1 comment:

  1. Note to Karen Meredith after watching that video: Get a grip. No one is requiring you to buy or play the game! And in the game, nobody gets hurt. It's just a bunch of 1's and 0's in a chip. And I guess I would have to say I'd rather them to be fighting in virtual reality than in real life. Karen, your arguments do not hold water.