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No free speech for games
Games aren't protected by the first amendment, but junk faxes are. What's the deal?
April 30, 2002: 3:56 PM EDT
By Chris Morris

NEW YORK (CNN/Money) - Pop quiz: What's the difference between Jason from the "Friday the 13th" movies, Woody Harrelson's character in "Natural Born Killers" and computer gaming action star Duke Nukem?

Answer: The first two characters are protected by the First Amendment.

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You read that right. Filmmakers can show brutal murders and graphic sex -- their artistic vision is guarded by the Constitution. The developers of "Resident Evil," "Half-Life" and even "The Sims" are not afforded the same privilege.

Senior U.S. District Judge Stephen Limbaugh made it official last week, ruling that violent or sexually explicit video games are not constitutionally protected forms of speech. This, from the same judge who also recently ruled that "junk faxes," those bothersome, costly flyers that clog your office machine, ARE, in fact, constitutionally protected free speech.


While Limbaugh's intentions were good the thrust of the case was whether local governments should be able to limit children's access to mature video games he has set a dangerous and, quite frankly, ludicrous precedent.

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"Max Payne" combined violence with a noir storyline

Limbaugh, who is related to conservative radio talk show host Rush Limbaugh, said in his ruling he found "no conveyance of ideas, expression or anything else that could possibly amount to free speech. ... Video games have more in common with board games and sports than they do with motion pictures."

Judge Limbaugh's decree aside, there are reams of titles that tell full, engaging stories on par with (or often better than) what we see in films. The "Wing Commander" series told of an epic space battle over five games (and were later made into a major motion picture). The "Final Fantasy" games are among the most story-intensive out there. "Max Payne" was a gritty shooter with a noir plot that seemed lifted from the cinema. "Deus Ex," "Metal Gear Solid 2"... the list goes on and on.

The ironic twist in all of this is the gaming industry only has itself to blame for the ruling. The Interactive Digital Software Association (IDSA), which represents gaming companies in this case, did an atrocious job of serving its members.

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While Judge Limbaugh's decision is easy to blast as ultra-conservative and narrow-minded, he wasn't presented with much of a choice when making it. By his own admission, he only viewed four games being played: "The Resident of Evil Creek," "Mortal Kombat," "Doom" and "Fear Effect." Footage of these was supplied by the County of St. Louis, which is trying to limit children's access to such games.

Asked to counter this, IDSA president Douglas Lowenstein merely provided an affidavit explaining how video games are created and discussing the "extensive plot and character development" today's games contain and sample scripts from other titles. What he failed to show was the final versions of those games.

"The court fails to see how video games express ideas, impressions, feelings or information unrelated to the game itself. ... The issue in this cause of action is whether ... video games are a form of expression, not whether ... 'scripts' are a form of expression," Limbaugh wrote in his decision. "The only video games given to the Court were those presented by the (county), and the court simply did not find the 'extensive plot and character development' referred to ... in the games it viewed. "

Atmospheric conditions and sharp writing made "Metal Gear Solid 2" as riveting as many films.

Why not provide the judge with a copy of "Black & White," which forces the player to think seriously about ethics? How about "Sim City," which makes the player balance the duties of government with the demands of the populace? Or the aforementioned "Max Payne," which touches on the dangers of drug use and addiction. Hmm... seems like these are exactly the free speech issues the Supreme Court deals with on a regular basis.

This isn't the first time the trade group has done a less than stellar job representing the industry. After the shootings at Columbine High School, the IDSA was thrust into the national spotlight. It was an inauspicious debut. While parents groups and other opponents of violent games were well spoken, Lowenstein and the IDSA seemed uncomfortable and combatively defensive.

The ineptitude in this matter may prove only a temporary stumbling block or could turn out to be a serious hurdle the industry will have to face as it strives for recognition as an entertainment medium on par with movies and music.

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It wasn't that long ago that courts were ruling video games weren't covered by the First Amendment for legitimate reasons. "Pac Man" and "Frogger" might be great games, but they didn't really tell a story or try to convey an idea. Today's titles are infinitely more sophisticated and they can catch you in a powerful emotional grasp. This ruling, though, sets the stage that would allow outside organizations to legally ban their distribution.

Thankfully, I don't think that's something we have to worry about anytime soon, as Judge Limbaugh's ruling should be fairly easy to have overturned assuming the industry gets its act together. But as gaming companies prepare for their annual trade show next month, they need to realize that in order to be accepted as professionals in the entertainment community, they need to act like it. And shoddy arguments, which allow overly restrictive court rulings against them, are a bad start.

Chris Morris is director of content development for CNN/Money. Click here to send him an email.  Top of page