Video Games Are Ruled Protected Speech, Now What?

Brian Crecente — Ending a years-long battle with California legislators, the U.S. Supreme Court this week ruled that video games are protected free speech and that their sale to minors can't be criminalized. More important than that historic ruling is the reminder by a U.S. 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 raises 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 colorful 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."