Violence in Media, and Virtual Violins and so on

The past couple years have seen a whole new focus by policymakers on violence in media, from the recent refocusing of the FCC on violent video to the violent video game ban in California.

All this implicates what is and ought to be bedrock free speech law. Setting aside the narrow, carefully drawn exceptions for soliciting and inciting crime–which require fairly direct involvement

in actual or imminent violence (“fighting words” and all that), the depiction of violence is protected speech. It must be, for free speech to mean anything; conflict is the stuff of human history, stories, and debate. Certainly, the depiction of a mindless murder for amusement could spark a copycat, but it is no more likely to spark real violence than someone inspired by a screed against abortion, by “Das Kapital,” by PETA, by Thomas Paine, and so on. “Violence,” is humor, it is news, it is revolutionary politics, it is comedy, it is Shakespeare.

One court initially ruled that video games were not “speech,” a call that was pretty clearly wrong and that has since been largely corrected. Games have a very strong expressive element; they are fictional works built of language, symbols, and pictures, like movies, books, songs, plays, cartoons, and so on.

None of this raises any particularly difficult conceptual problems in free speech law. Going forward, that is likely to change. The looming problem is the speech/action dichotomy; very roughly, the rule is, speech is protected, but action is not. The trouble will show up first with video games.

Some folks find Grand Theft Auto objectionable. Well, they really haven’t seen anything yet. With virtual reality headsets and human beings being what they are, I expect we are ultimately going to see some incredibly realistic and also very nasty games, with the player experience becoming more and more participatory. Some of these games will just be vicious, some of them will have a strong story line and pit “good guys” against “bad guys,” some will be military training sims. There will be virtual skiing, virtual golf, virtual hunting, virtual porn, and virtual war.

Is this speech or action? Well, both. Games are squarely in the world of representation, fiction, symbolism. But there is action, too, and of a sort the effect of which on the human psyche is going be hard to call. The game of virtual tennis draws ever closer to a real game of tennis. (Is a real game of tennis protected expression? Soccer? Playing a game of chess? Of tic-tac-toe? Old Maid? Polker? Hearts? Blackjack? I don’t know of any case deciding that issue; it would be interesting to find out.) Shakespeare’s plays are clearly protected speech; acting in a play–pretending to murder one’s fellows, and so on–ought to be, too, but there is so much more “action” going on there than text. But we surely can’t have a world in which the state may not censor the reading or writing of plays, but may forbid one to act in them.

My larger point is, though, that distinguishing between speech and action isn’t going to be helpful in sorting out whether this stuff ought to be protected or not, because of the extent of the overlap. It is more helpful to ask whether the action in question violates anyone’s rights (as defined otherwise by property & contract law). But this is in turn difficult to reconcile with the text of the first amendment, which describes “speech and the press,”–perhaps it ought to more generally protect the freedom to do what one likes with one’s property and the freedom of contract, but it doesn’t.

Any interesting puzzle or set of puzzles. I’m sure there’s a good bit written on this, but for purposes of this blog, I did not care to look it all up. Enlighten me, if you like.

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