Movie critic Roger Ebert once (or twice, really) infamously declared that video games aren’t art because they’re interactive.1 To Ebert, anything that descends so low as to actively involve the peasants in its own audience lacks the magic stamp of “authorial control.” (Who exactly is the author of a movie, which is typically made by a cast, crew, studio staff, outside production house staff and test-marketing teams collectively numbering in the hundreds, is a mystery we can leave Rog to answer.)
What’s fascinating—and frightening—is that would-be censors have been making exactly the same argument in legal terms. Interactivity means that video games aren’t art, they say, so they’re not protected by the First Amendment. This is all the more ironic considering that interactivity arguably is the core art-within-the-art of video games, as editing is in films.2
It’s no coincidence that Ebert’s aesthetic argument and the censors’ legal argument are essentially the same. Media censorship is always a reactionary aesthetic freak-out over the lower-class rabble getting too noisy (particularly if the children can hear them). And the censorship always specifically attacks and attempts to devalue the aspect of the art that is seen as the most proletarian. As the African-American creators of jazz and rock were once targeted by the racist firestorm over “jungle music,” so the (perceived) social-misfit players of video games are now targeted by a disparaging usage of “interactive.”
Courts have given the legal assaults an Ebertian thumbs-down, usually while expressing surprise that nobody’s heard of the First Amendment. But such claims will continue until all the old people die and the video game generation is fully in control of presidencies, governorships and legislatures as the rock ’n’ roll generation is now. That’s the pattern of all pop-culture-era censorship frenzies.
Indeed, so clear is this pattern that we should be legislating against it, not against video games. Any time an elected official promulgates an art censorship law that is patently in violation of the First Amendment (including sales bans and rating systems), they should be automatically impeached for breaking their oath of office to uphold the Constitution. Sure, freedom of speech usually wins out in the end, but always at great personal cost to artists and significant financial cost to taxpayers.
Shooting down an obviously unconstitutional video game sales ban in Louisiana in 2006 (ESA v. Foti), District Court Judge James Brady declared himself “dumbfounded that the Attorney General and the State are in the position of having to pay taxpayer money [to the tune of $91,900] as attorney’s fees and costs in this lawsuit.” Noting that the legislature is full of lawyers who should have known better, he said, “The Court wonders why nobody objected to the enactment of this statute. In this court’s view, the taxpayers deserve more from their elected officials.”
While painting video games as crime-creating cabinets of Dr. Caligari, the elected officials behind these laws are the real criminals, knowingly breaking one of our democracy’s most sacred precepts and freely wasting government funds for short-term personal political gain. There should be a video game about them called “Grand Theft Autocrat,” and it should be bloody.
Of course, what actually tends to happen is that they carry on merrily like would-be 1980s rock censors Al and Tipper Gore did, wrapped in the glory of protecting the youth that has sheltered politicians ever since they executed Socrates.
So, despite nine censorship laws shot down from 2001 to 2007, the assault on video games in general and their “interactivity” in particular continue, right up to the Obama administration and the NRA gunning for video-game makers after the Newtown school shooting.3 Thus, let us know our enemy.
The interactivity of video games has been generally demonized as a force uniquely suited to turn children into lust murderers. Video game interactivity certainly is new and has a rich array of psychological effects and curiosities. But censors, as they always do, seize on it solely for its novelty, which to them is synonymous with threatening. And yet, there’s nothing new about their pseudoscientific arguments; they now say that the new powers of video games will make kids kill, just like they used to say the new powers of movies will make kids kill, or the unique powers of comic books will turn kids into juvenile delinquents, or the unique powers of heavy metal records will turn kids into suicidal Satanists. The “threat” is always new; the mistrust of our own kids is always old.
In 2000, Indianapolis attempted to ban kids from playing some video games in public arcades, an unbelievable bit of idiocy that cost the city $318,000 in court costs. Demolishing the ban in the case American Amusement Machine Association v. Kendrick, Seventh Circuit Court Judge Richard Posner considered the new bogeyman of interactivity.
“Maybe video games are different. They are, after all, interactive,” Posner wrote. “But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. Protests from readers caused Dickens to revise ‘Great Expectations’ to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of ‘Ulysses’ are imagined to have occurred. The cult of Sherlock Holmes is well known.”
OK, so it’s not great as art theory and makes it pretty clear that Posner never actually played a video game. But it’s a great legal argument: If you want to demonize interactivity, good luck doing so in a way that isn’t unconstitutionally vague and overbroad.
In 2005, the state of Michigan attempted to ban the sale of certain video games to minors and got successfully sued into “game over” mode by the industry (ESA v. Granholm). The state made a big huffy noise about appealing but never has, and meanwhile forked over $182,000 in court costs that Gov. Jennifer Granholm should have repaid out of her own pocket.
The suit was founded on the same old superstition that interactivity is a homicide-maker. But it also apparently pioneered the legal version of Ebert’s argument that interactivity means games aren’t art, and thus aren’t speech, and thus can be censored.
District Court Judge George Steeh was kind enough to articulate the defendants’ own argument: “The defendant concedes that the First Amendment fully protects the expressive element in video games [the story, art, music and other traditionally accepted artistic elements] but argues that the interactive functional element, which is not present in other forms of electronic media, can be distinguished and should not be considered protected speech.”
In other words, the state argued that interactivity—the ability to play the game—is not part of the artform, but more like a TV remote control. It can therefore be regulated like a tool. Of course, if that is so, then interactivity has no psychological content or effect, and there’s no reason for the ban in the first place. Whoopsie!
But Steeh didn’t make that argument. He did much better. He said that not only is interactivity art, but it may in fact privilege the video game medium above others rather than denigrate it into something worthless and evil.
“The interactive, or functional aspect, in video games can be said to enhance the expressive elements even more than other media by drawing the player closer to the characters and becoming more involved in the plot of the game than by simply watching a movie or television show,” Steeh wrote. “In video games, it is the player who controls the actions of the character and often determines the outcome of the game. With the rapid advancements of video game technology and new innovations, such as online gaming, video games are becoming more open ended with more possibilities to interact with other players and control the fate of the characters and the worlds they inhabit. It would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependent on each other in creating the virtual experience.”
That a jurist is a better art critic than one of our most famous movie reviewers is a symptom of a culture that greets all exciting new artforms with superstitious hostility and legal bullying. Steeh pegged that, too, emphasizing that the Michigan ban “appears to discriminate against a disfavored ‘newcomer’ in the world of entertainment media.”
So it always is. “Jungle music” went from bans and riots to a semi-hallowed Hall of Fame. Video games will follow a similar path, and these court cases ironically prove they’re well on their way.
2 I would add, to further Roger Ebert’s dismay, that film editing is essentially interactive as well, requiring its meaning on the screen to be mentally distilled and created by the viewer from both physical/optical and cultural cues.
3 Information about the court cases involving video game ban attempts, including some excerpts from the language of the decisions, was provided by Dan Hewitt, director of media relations for the Entertainment Software Association (ESA), an industry lobby.
The original version of this essay was written in 2007.