The Right to Virtually Assemble

Posted on April 16, 2003    Posted by John Scalzi      2 Comments

As many of you know, in addition to all the other pointless and stupid but mortgage-paying crap I do, I also do something important, which is to write a bi-monthly column about video games and social issues for Official PlayStation Magazine. Shut up. It actually is important stuff, thank you very much. One of the things I’ve been following for the column is a case in St. Louis about the what first amendment protections should be afforded to video games. About a year ago, a judge in St. Louis ruled that video games should not be afforded First Amendment protections, a decision he came to after watching about fifteen minutes of videotape, prepared by the prosecution, of some of the more gory moments of Resident Evil and Mortal Kombat.

It’s worth noting that the judge making the ruling was so unfamiliar with the titles he was adjudicating upon that he didn’t even get their names right (he called Resident Evil “Resident of Evil Creek”), which doesn’t inspire much confidence in his jurisprudence. Needless to say, the decision was appealed, and at the appeal the video game makers submitted complete scripts to a couple of video games to show that there was indeed some artistic effort put into the games that afforded them first amendment protection. They’re waiting for this decision to come back now.

I think video games do have first amendment protection, if for no other reason than because off the top of my head I can think of several that have better stories than a whole raft of movies I could name — it’s nearly axiomatic that video games almost always have better stories than movies based on them (see: Mortal Kombat, Resident Evil, and — God love it — Super Mario Brothers). In the case of Star Wars, the recent Jedi Knight II video game has a story that kicks ass over the story in Attack of the Clones, which is a real embarrassing development for George Lucas. Director Paul W.S. Anderson is reportedly preparing an Aliens Vs. Predator movie, and given his craptacular past (he directed the Resident Evil movie and the Mortal Kombat movie) there’s almost no hope it’ll be better than the stories in the video game series, which are pretty damn good (especially the second one). If any of these God-awful films meet the standard for protected speech, these video games certainly do as well.

But I think there’s also an interesting wrinkle in the first amendment argument for video games that I’d like to toss out there for comment and criticism (which, of course, I’ll use for background in my next OPM column). So far all the arguments for first amendment protection for video games is founded on freedom of speech from governmental intervention. But what about freedom of peaceable assembly?

Follow: one of the fastest-growing genres of the video game market is that of the Massively Multi-Player Online Role Playing Game (also known by the unwieldy acronym MMORPG, which I would assume is pronounced “more-pig”). These games feature persistent universes in which players all around the US (and the world, but let’s keep focused) send virtual versions of themselves to do whatever they do in that world. The virtual worlds range from fantasy-themed worlds where people go on quests, to more contemporary worlds (like The Sims Online) where online-created characters simply go to exist.

Beyond the MMORPGs, there are also more simply multiplayer-enabled games which while lacking persistent universes, still create “places” where game players congregate online to play their games — lots of first person shooters (most obviously the various Quake and Unreal Tournament iterations) do this. The games themselves are sometimes violent, particularly as it concerns first person shooters, but in the real world sense, they are less violent than, say, your average softball game, at which you have the potential to get beaned or to rip up your leg sliding into a base, or your average Society for Creative Anachronism meeting, at which you might get impaled if you’re not careful.

I think that one could reasonably argue that video games allow like-minded people to assemble peaceably, to pursue their interests and so on and so forth. And thus, attempts by the government to restrict such assemblies is an imposition on first amendment rights.

Some objections I can possibly see to this line of reasoning:

1. Assembling online may or may not be recognized as the same as assembling at the park — I don’t know what the case law on this is;
2. The implements of this assembly are commercial products, most of which have EULAs that might make such claims to constitutional rights moot (but — a little help here — only as it relates to a player’s protections against the manufacturing company, not the government);
3. Likewise, the servers on which the MMOPRG “worlds” exist are also frequently privately owned, which may have ramifications for Constitutional issues (on the other hand, might not multiplayer games on servers at a publicly-funded institution, like a state university, be explicitly protected).

So: Your thoughts. Is there a first amendment right to assemble through video games? And if not, why not?