Video Games Are Ruled Protected Speech, Now What?

Video Games Are Ruled Protected Speech, Now What?

Ending a years-long battle with California legislators, the US Supreme Court this week ruled that video games are protected free speech and that their sale to minors can’t be criminalised.

More important than that historic ruling is the reminder by a US Supreme Court Justice that video games, like books, plays and movies, communicate ideas.

“The basic principles of freedom of speech… do not vary’ with a new and different communication medium,” Justice Antonin Scalia wrote in the Court’s opinion, citing an earlier speech case.

In writing the opinion for the 7-2 ruling, Scalia likened video games to the mediums that came before it. He cited a variety of classic literature from Dante’s Inferno, to Homer’s Odysseus to Grimm’s Fairy Tales.

“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Scalia wrote. “But these cultural and intellectual differences are not constitutional.”

It begs the question, what video games live up to that legacy of great literary works? And why aren’t there more of them?

While there have been great, thoughtful video games that have explored a complexity of ideas, the face of gaming, the video games that are most known in the mainstream, are the ones more akin to a summer action flick or light-hearted comedy.

When the people who don’t play, think of video games it’s more likely they’ll think of the never-ending gunfights of Call of Duty: Modern Warfare, endless Madden games and colourful worlds of Super Mario than BioShock’s exploration of Objectivism.

That isn’t a problem as much as it is a challenge, a gauntlet perhaps accidentally tossed down by Scalia in the opinion he wrote this week.

That video games are protected speech seems blindingly obvious. Now that this distraction is out of the way, lets see the creation of more games like Bioshock, like Shadow of the Colossus, like Flower, games that make you think, that explore new ideas, that shake up preconceived notions.

Video game makers have an opportunity in this decision to prove the value and worth of their medium in the face of acceptance at a level that perhaps few game makers ever thought would occur.

That notion, and the knowledge that video games can be powerful forms of expression, isn’t lost on game makers.

Ken Levine, the man behind Bioshock, points out that all of our freedoms derive from the right to express ourselves.

“Today, the Court brought the medium we love fully into that circle of freedom,” he said. “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.”

Well Played is an internationally syndicated weekly news and opinion column about the big stories of the week in the gaming industry and its bigger impact on things to come. Feel free to join in the discussion.


  • Win.
    Also the only game I can think of that equals books in terms of storytelling this generation is Nier.

  • In THEORY this is a good thing. In THEORY.

    In practice, this is not going to go well… people never moderate themselves appropriately.

  • I approve. I’ve always liked games that werent afraid to go places, like MW2’s airport scene. Not that I particularly like shooting up airports full of innocent people, but the fact that the creators didn’t pussy-foot around something so controversial in this day and age leant a lot of weight to that particular level, and the rest of the storyline.

    Hopefully this ruling means that more games are free to express themselves with their content however they like.

  • the phrase ‘begs the question’ does not mean ‘raises the question’

    you are using it incorrectly.

  • You ask for more great games that shake the preconceived notions. But whenever a game like this is released it’s ruined by that fact.

    It’s labelled as “arty” and it comes across as being arts for arts sake rather than genuine expression. It’s like abstract art, it doesn’t make sense and most of it seems to be abstract for abstract’s sake and no real meaning. People look at games like Shadow of Colossus and Journey and Flower and they say “oh Kotaku/IGN/Gamespot said that was an ‘arty’ game, I’m not going to like that”.

    Labelling games in this way only hurts them, taking a prime example is Linger in Shadows. People and reviewers gave it great reviews and I even paid for and played it through. But why? Now I look back, it wasn’t even a game, it wasn’t thought provoking nor was it even telling me a story or emotion. It was abstract just for no reason, we’re giving too much attention nowadays to the idea of “different is good”, there’s a strong difference between being unique for bring new ideas to the table and being different just to stand out.

  • But you still can’t simply call a jew a jew in some countries without being threatened with legal action & to have your livelihood taken by being fired from your job! True story!

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