Background

Like films before them, video games were not always seen or recognized as a form of protected speech. Speech itself does not have to be spoken as it can also be an action, or an expression. Movies and books are forms of expression as they communicate their ideas through the medium. Books, movies, and video games all have this in common and have different levels of interaction through their literary devices. It wasn’t until 2011 that the Supreme Court reaffirmed this. While video games may enjoy these protections in the U.S., it isn’t always the case in other countries.

In 2005, California State Senator, Leland Yee had his bill, AB-1179, passed by senate in order to ban the sale of violent video games to minors and a $1000 fine for violations. In addition, the bill required violent video games to be labeled as sale for adults only by displaying a solid white sticker with a black outlined “18.” The bill was signed into law by Governor Arnold Schwarzenegger and would take effect on Jan 1, 2006 but was blocked by California Judge Ronald Whyte.

The bill was overturned in 2007 with Whyte ruling the act unconstitutional and added, “The Act regulates video games, which, even though mere entertainment, are nonetheless protected by the First Amendment.” Gov. Schwarzenegger appealed the ruling but the United States Ninth Circuit Court of Appeals maintained Whyte’s decision. The case made its way into the U.S. Supreme Court by Gov. Schwarzenegger’s second appeal and a hearing was held on November 2, 2010. A decision was to be made by June of 2011.

Brown v. Entertainment Merchants Association

After six years, the Act was finally struck down for good in a 7-2 ruling. This was the first time the Supreme Court addressed the topic of video games. Justice Antonin Scalia compared the medium of video games to classic literature such as the Grimm’s Fairy Tales and Dante’s Inferno.

Scalia’s majority opinion stated, “Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”

In response to the State of California’s arguments for banning the sale of violent video games to minors, Scalia affirmed the state’s arguments, “would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none."

Stephen Bates, professor of First Amendment and society at the University of Nevada Las Vegas elaborated on this, “Historically, materials about sex have been subject to censorship; those about violence have not been.” In other words, First Amendment law doesn’t change fast because it is partly based on tradition.

AB-1179 used the Miller Test’s criteria to determine if the content in question was obscene. As violence is not labeled as obscene, it cannot be regulated but the State of California argued it was able to control speech if it is directed at children. The court’s opinion addressed this, “[State of California] wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken.” The opinion reaffirmed children receive First Amendment protection like adults and the government can only restrict speech to minors if it is obscene or incitement.

The court’s opinion also acknowledged the Entertainment Software Ratings Board’s (ESRB) effectiveness over the movie and music industry, citing the Federal Trade Commission’s findings in 2009. The video game industry was more effective in restricting mature content directed at children, clear disclosure of ratings information, and restricting children from buying mature content at retailers.

What Does It Mean for Video Games?

After the Supreme Court’s ruling that video games are protected forms of speech like books and movies before them, Kotaku’s Brian Crecente asked now what? In the court’s opinion, Scalia wrote, “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional." As Scalia had compared video games to literature, Crecente wondered which games would be worthy as being regarded as classic literate like Dante’s Inferno.

Crecente quoted Ken Levine, the lead designer behind Bioshock at 2K Games. “Today, the Court brought the medium we love fully into that circle of freedom. And we move forward empowered, but also with a sense of responsibility that words have meaning. So we as creators will choose our words with respect, understanding their power. But no law will have the authority to choose them for us.” Levine, as a game creator, understands that games are more than just mere entertainment and thought has go into a game.

Throughout the industry, the ruling was celebrated by key figures of companies such as Electronic Arts and Activision. The president of the video game industry representative group, the Entertainment Software Association, Michael D. Gallagher stated, “The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children.”

As the video game industry celebrated, Sen. Yee was disappointed with the Supreme Court’s decision. “[The Supreme Court] decided that it is going to side with corporate America and Wal-Mart against our children.” Yee had previously told Kotaku, that it wasn’t about him trying to stop developers from making anymore “atrocious” games but rather figuring out when this type of content is appropriate. Yee had a background in child psychology and did not find violent video games to be appropriate for child development.

Video Games in the U.S. vs. Germany

One of the most recent games to be altered when released outside the U.S. was developer Sledgehammer’s Call of Duty: World War II (COD: WWII) in its German release. COD: WWII was released in 2017 and as its title implies, is set in World War II. Under Germany’s Strafgesetzbuch section 86a (criminal code), no symbol belonging to unconstitutional organizations may be shown, however, they are acceptable if used in a historical context, regarded as art or for research purposes. The Sozialadäquanzklausel, or social adequacy clause, allows exceptions for movies and books to use these symbols freely in the appropriate context, but video games were not included in the clause. Any video game featuring this content would either have to be altered or Germany’s ESRB equivalent, the USK will refuse to rate the game. If games are not rated, they cannot be sold.

This was the case for Michael Condrey, co-founder of Sledgehammer, during the development of COD: WWII. As this game was going to be released in Germany and they have to respect laws in other countries, Condrey and his team chose to not include Nazi imagery in the game’s multiplayer across all versions but the campaign still included the imagery which was altered in Germany. The decision was made to ensure the multiplayer would be the same across the world for players.

Condrey stated, “There are, of course, cultural boundaries that we felt we needed to respect and we also wanted to be authentic in our approach to game design. It’s a fine balance of not glorifying the symbolism, while also not ignoring or shying away from this dark moment in human history.” Condrey’s words closely follow Levine’s in terms of carefully choosing “words” and understanding their power. As the setting for the game is World War II, there are certain factual things that the developers included, but they also took some liberties, in respectful ways, when choosing what not to include.

Condrey and Sledgehammer went as far as hiring a military consultant to use the imagery appropriately and be historically accurate. There was no need to include the imagery in multiplayer as it isn’t based on history. Condrey added, “Including Nazi symbols wouldn’t bring honor, nor be appropriate, without the rich history of a WWII story to ground their context in multiplayer.”

Germany’s Sozialadäquanzklausel

A second game, also released in 2017 was Wolfenstein II: The New Colossus. Whereas COD: WWII featured Nazi imagery in a historical setting, Wolfenstein II is set in an alternative history. A history where the allies lost WWII and the Nazi regime took over the world. Given Germany’s law, it was surprising that Wolfenstein even got a German release, albeit, with a few major changes.

Noticeably, the biggest difference of course, is the exclusion of the swastika on enemies’ uniforms. It has been replaced by a three-pronged symbol. The swastika also appears throughout the game on banners and posters. Normally, books and films would be okay showing this imagery by having it labeled as art but since 1998, videos games were excluded from the social adequacy clause. In fact, video games were excluded from the clause for over two decades because of a ruling from the High District Frankfurt Court over Wolfenstein 3D.

“In particular for children and adolescents, computer games are an attractive and increasingly used form of play. If they would be lawfully confronted with symbols of national socialist organizations in video games, this could lead to them growing up with these symbols and insignias and thereby becoming used to them, which again could make them more vulnerable for ideological manipulation by national socialist ideas.”

The court saw video games are primarily being intended for children and did not find Wolfenstein 3D to be culturally significant. This set the precedent for the medium of video games in Germany until 2018. German authorities announced the USK will now be able to rate games that feature Nazi imagery on a case-by-case basis to determine if the social adequacy clause applies. The 1998 ruling was seen as outdated by Germany’s attorney general who had argued the ruling was before Germany’s introduction of age ratings in 2003.

The decision was welcomed by the German Games Industry Association, or “game,” who had long campaigned for the change. Managing director of “game,” Mark Felix saw the decision as “an important step for games in Germany.” He highlighted the concerns the German video game industry has for issues of racism and discrimination. Felix added, “Many games produced by creative, dedicated developers address sensitive topics such as the Nazi era in Germany, and they do so in a responsible way that encourages reflection and critical thinking.”

“Like the protected books, plays and movies that preceded them”

Having video games receive first amendment protections or be in included in the social adequacy clause was never about being able to make video games with this type of content. The point was to have video games equally recognized as a medium that communicates ideas just like books, TV, and films. Video games are often targeted due their content and interactive nature but books have no shortage of violence as Scalia mentioned, Grimm’s Fairytales for children.

Video games are also not the first new medium to be recognized as protected speech by the U.S. Supreme Court. According the New York Times, motion pictures were initially denied protection by the Supreme court in 1915 because they could be used for evil. It wasn’t until 1952 that the Supreme Court recognized motion pictures as a “form of expression through art.”

“It cannot be doubted that motion pictures are a significant medium for the communication of ideas. Their importance as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”

About 66 years ago, the Supreme Court acknowledged movies being a significant medium as well as being designed to entertain. The words, “motion pictures” and “video games” can be replaced in the ruling and still have the same meaning. Video games, like books and movies before them, are designed to entertain and sometimes, they can also be informative.