The Limbaugh Baby

Anything you play can and will be used against you in a court of law

Henry Jenkins and Kurt Squire

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This article originally appeared in Computer Games Magazine #150

Last year, a federal district court judge, Stephen N. Limbaugh, ruled that the First Amendment does not protect videogames. The decision is currently under appeal with a ruling expected this spring. Limbaugh was reviewing a St. Louis law restricting the sale or display of violent videogames to youth and went much further than anyone anticipated.
Plays, books, and movies enjoy constitutional protection. However, since videogames are a new media, Limbaugh demanded that the Interactive Digital Software Association demonstrate that games express ideas. Of course, one wonders why a law protecting minors from violent content would be needed if videogames communicated no ideas. If left standing, the decision could stifle the artistic advancement of games. Already, it has emboldened moral crusaders to launch a media war against Grand Theft Auto III, and has inspired other laws restricting youth access to games.
Ironically, it came at a moment when games were gaining respectability: the release of The Sims and current generation consoles had changed the tone of media coverage. For example, the Barbican, a leading arts institution, hosted a major exhibition showcasing the aesthetics of game design, and game studies is a growing academic discipline.
The judge considered none of these factors, reaching his decision on the basis of four games. Limbaugh’s examination was so cursory that he mangled three of the titles, referring to Resident Evil as Resident of Evil Creek. Limbaugh also drew legal precedents from a 1982 case that had found that videogames at that point amounted to little more than technical improvements to bingo or pinball. He assumed that games have evolved little since 1982.
Limbaugh rejected protection for works that “entertained” but did not “inform.” Art can be meaningful if it shapes our emotional experiences, and isn’t that pretty much what we mean by entertainment? How often are we told that games aren’t art because videogames companies are in the business of “making money?” All art originates in an economic context: artists depend on money to survive, whether from patrons, governments, or customers, so this line is less clear-cut than it might seem. Much of what we now consider art was yesterday’s popular culture.
Limbaugh required that the meaning be clearly visible in the work itself, and be recognized in a consistent fashion by the majority of people who consumed it. Such standards don’t work when applied to a medium profoundly shaped by the user’s participation. Games do not convey predictable meanings; they construct atmospheres that express certain attitudes and provide mechanisms that allow players to create their own meaningful experiences. Can anyone who has played such games as Morrowind, Black & White, or Deus Ex doubt that they express distinctive worldviews?
Limbaugh was illiterate about games. He never played them; he watched cut scenes selected by the prosecutor and scripts submitted by the IDSA. Gamers know that playing a game is a very different kind of experience than watching one, and both are different from reading scripts. If you don’t experience the medium itself, how can you determine whether expression has occurred?
Limbaugh tripped over the expansiveness of the term “game,” which refers to virtually all recreational uses of computers. He wanted an across-the-board standard. Unless all games constituted meaningful expression, no games deserved constitutional protection. But, games encompass not only electronic bingo or digital shooting galleries but also interactive fiction, interactive music, educational tools, and online worlds. Isn’t it problematic to look at a handful of games and write off an entire medium as being without expressive merit? Not all books are deeply meaningful but print is judged based on its highest accomplishments, not its most banal.
The anti-video game activist, David Grossman consistently compares games to packs of cigarettes, and Limbaugh’s decision backs his argument that games are essentially commodities. This current round of legislation defines media violence as obscenity. Right now, the focus is on protecting minors, but if the history of obscenity law is any indication, the prosecutors won’t stop there. Limbaugh lowered the bar, freeing prosecutors to pursue any game which offends them. The good news is that most lawyers believe that Limbaugh’s ruling will be overturned. All we can do now is wait and hope.
In the meantime, anything you play can and will be used against you in a court of law.

This article originally appeared in Computer Games Magazine #150