The Limbaugh Baby

Henry Jenkins III and Kurt Squire

Last year, a federal district court judge, Stephen N. Limbaugh, ruled that video games fell outside First Amendment protections. The decision is currently under appeal and a ruling is expected this spring. If the decision is left standing, it could have an enormous impact on the development of games as a medium. Already, the decision has emboldened moral crusaders who have launched a media war against Grand Theft Auto 3 and a range of other titles. Here’s why you should care about the Limbaugh decision.

Limbaugh had been asked to review a Saint Louis law restricting the sale or display of violent video games to minors. Limbaugh went well beyond the issue of whether the IDSA’s ratings should be legally enforced, taking up sweeping Constitutional questions by ruling that video games enjoy no constitutional protection. One can disagree about the issue of ratings enforcement and still be deeply concerned about Limbaugh’s conclusion that video games do not constitute artistic or political expression. Ironically, the decision was handed down at a moment when games were beginning to get social and artistic respectability: the release of the Sims and current generation consoles had changed the tone of media coverage of the games industry; the Barbican, a leading arts institution, had hosted a major exhibition showcasing the aesthetics of game design; a growing academic discipline has developed around the study of games and a maturing body of game criticism is appearing in print and on the internet.

Yet, none of these factors shaped Limbaugh’s decision, since the IDSA offered no expert witnesses who might support the claim that video games were an important form of contemporary expression. The judge reached the decision on the basis of only four game titles, all shooters or survival-horror games, all released more than five years ago. Limbaugh apparently gave those four games - or rather cut scenes from those games selected by the prosecutor - so little attention that he managed to mangle three of the four titles in the decision, referring to Resident Evil as Resident of Evil Creek. Limbaugh also drew legal precedents from a 1982 case, which had found that video games at that point amounted to little more than a technical improvement on traditional board games or pinball and thus did not yet represent a meaningful form of expression. Limbaugh seems to be assuming that contemporary games, which range from relationship simulators to dance games to massively multiplayer worlds had not evolved since 1982.

If Limbaugh was asked to adjudicate a book, a play, a movie, it would be assumed, based on previous legal precedent, that these media enjoyed constitutional protection and the prosecutor would bear the burden of proof in demonstrating that the alleged social harms constituted a compelling state interest which superseded those rights. However, since video games were a new media, Limbaugh demanded that the IDSA demonstrate that games could express ideas.

Now recognize several things: first, Limbaugh had already decided that works which entertained but did not inform or educate probably didn’t justify constitutional protection. What’s at stake here is a distinction between popular entertainment and artistic expression. An artwork in an established medium, which expressed a feeling rather than an idea, would enjoy the court’s protection. However, video games were inherently suspect because they are commodities of a corporate culture and not the works of expressive individuals. Of course, one wonders why a law protecting minors from violent content would have been necessary in the first place if video games communicated no ideas. But, as the argument goes, the video games companies are just in the business of making money, where-as artists are primarily motivated by aesthetic impulses. If you look across the history of media, you find that these seemingly clear-cut distinctions are questionable. Unless you’re independently wealthy, any painter, musician or sculptor needs to survive within an economic system, which frequently means doing commissioned work or work for patrons. Shakespeare was not always considered high art; his plays originally were performed for the masses and it is relatively recently that they have been given high art status. Today’s Warren Spector could be tomorrow’s Shakespeare. This notion that popular culture is without value and questions creative works just because they are made within economics contexts is naïve, and based on personal taste rather than any sound logic.

Secondly, Limbaugh’s notion of expression required that the meaning be clearly visible in the work itself and likely to be recognized in a consistent fashion by the majority of people who consumed it. Even if these standards made sense when applied to books where meanings can be read off the printed page, they make less sense when applied to an interactive medium, like games, which are profoundly shaped by the user’s participation. Games do not so much convey predictable meanings as they set up atmospheres that express certain attitudes and mechanisms which will allow players to create their own meaningful experiences. In many cases, games express ideas in a non-literal fashion, more like architecture or interpretive dance than like a novel or a political treatise. Ideas get embodied within the physical properties of spaces or in the ways we navigate through them. Yet, can anyone who has played such games as Metal Gear Solid, Morrowind, Black and White, Deus Ex, or State of Emergency doubt that they express distinctive worldviews? Many scholars argue what gamers already know - playing a game is a very different kind of emotional experience than watching a game. Judging games on the basis of watching cut scenes and scripts is like judging architecture from the blue prints rather than actually visiting the site or judging movies based on screenplays rather than experiencing the work on a big screen. Expression is bound up with the distinctive properties of a medium and if you don’t experience the medium itself, how can you possibly determine whether expression has occurred?

Thirdly, Limbaugh tripped over the expansiveness of the term game, which refers to virtually all forms of recreational use of computers and includes activities which in their non-virtual form might include sports, toys, play, games, community participation, or even music-making and art. Unless all games contained some form of meaningful expression, then, Limbaugh felt that he could not offer the medium as a whole constitutional protection. Extending this argument, Limbaugh suggests that a digital bingo or baseball game bears no more constitutional protection than its real world counterpart. Expressive activities - say, the performance of the national anthem - may take place around the baseball game but the game itself is not an expressive activity. Given that games also encompass interactive fiction (Final Fantasy), transmedia stories (Majestic), interactive music (Frequency), educational tools (Virtual U), and online worlds (The Sims Online), it is problematic to take a handful of games and write off an entire medium as being without expressive merit. All of this may seem a little arcane but it will have very real consequences if the Limbaugh ruling is left standing. Prosecutors will have to present relatively little justification for going after computer games that offend their sensibilities. Games will be seen simply as commodities rather than as artworks. The anti-video game activist, David Grossman, for example, consistently compares games to packs of cigarettes and Limbaugh’s decision essentially backs his argument. Right now, the focus is on protecting minors, but if the history of obscenity law is any indication, the prosecutors won’t stop there. If violence is read as a form of obscenity, which is the thrust of this current round of legislation, then the courts will be justified in banning adult access as well. The good news is that most lawyers believe that Limbaugh’s ruling will be overturned since it is inconsistent with other recent decisions on related issues. All we can do now is wait and hope.

Originally printed in Computer Games Magazine, May 2003