First Amendment & Free Speech

In less than 36 hours, one of the most anticipated—and most demonized—games in years will hit the shelves. Grand Theft Auto IV, the “true” successor to the groundbreaking Grant Theft Auto III, has been the focus of intense criticism ever since being announced. But while GTA IV will undoubtedly be filled with extreme violence, it may also be a masterpiece of human creativity.

On Friday, IGN reviewed GTA IV, giving it a highly elusive perfect score. Calling it “masterful” and an “American dream,” IGN says GTA IV is the greatest game in nearly a decade. Since the press embargo ended this morning, many other reviewers are reaching similar conclusions.

No real surprises there. What’s surprising, however, is that unlike its somewhat one-dimensional predecessors, GTA IV offers unprecedented character depth along with an “Oscar-caliber” storyline. And it also depicts the ugly downside of crime in the same vein as epic films like Goodfellas and Scarface, retelling the classic story of a struggling immigrant coming to America in search of fortune, haunted by the experiences of a past life.

Naturally, Grand Theft Auto’s release has re-ignited public debate over how games affect kids and whether new laws are needed to protect children from the gratuitous violence found in many video games. GTA has been a favorite target of politicians for the past eight years, and the usual suspects like Jack Thompson and Tim Winter have predictably spoken out against GTA IV. But parental controls are more robust than ever, as Adam has documented, and some have even suggested that kids should be playing Grand Theft Auto. Despite the recent explosion in hyper-realistic violent games, violent crime rates have been dropping across the board. Maybe games like GTA are just another harmless outlet for kids to express violent behavior, much like playing cops and robbers.

As game budgets have swelled and public interest in gaming has expanded, more games than ever transcend the stereotype of gaming as a juvenile pursuit with little artistic merit, reminding us that games can be artistic expressions on par with books, movies, or songs. Critics whose gaming experience consists of having played Pacman in an arcade may belittle gaming as a trivial pastime, but anybody who has played Bioshock or Gears of War or Oblivion knows better. Games can critique the harsh realities of modern society and offer insight into the nature of the human soul in ways that less interactive forms of media cannot. Likewise, games deserve both critical admiration and legal protection.

Of course, GTA IV is no Mona Lisa. But the way things are going, it’s entirely possible that the next timeless masterpiece of artistic expression will be created not with a brush or pen, but with lines of code.

Last week a scad of stories from Reuters to News.com covered the growing push for a “Do Not Track” registry similar to the “Do Not Call” list that serves to protect US households from mid-dinner sales calls. While I understand the concerns expressed by folks like Marc Rotenberg of EPIC and Jeff Chester of the Center for Digital Democracy, who were both cited by Anne Broache in the News.com piece from last week, I think that asking the government to hold a master list of IPs and consumer names is a bad idea, or at least one that won’t do much to really protect consumers.

First, tracking people online is a bit different from calling folks in their homes. Telemarketing, while highly effective in terms of sales produced per dollar of marketing money spent, is still orders of magnitude more expensive than spamming or collecting data online without consent. Both of these activities are illegal today, but they still occur. They occur so much that spam-filtering technology contains some of the most advanced natural language recognition and parsing software created. Cory Doctorow has mused that the first artificial intelligences will emerge from Spam and anti-Spam computer arrays.

So this list wouldn’t be the magic wish that privacy advocates and legislators might dream it to be. It would cause law-abiding companies like Google, AOL, and Microsoft to stop collecting data, but so could privately developed and enforced systems.

Anne Broache notes that cookies are a bad solution for stopping data tracking as many anti-spy-ware programs delete cookies, since cookies are often used for the purpose of data tracking. But why not just create a new variety of cookie? Call it a cake, a brownie, a cupcake–maybe even a muffin. Whatever you call it, just specify that a standards-compliant browser must contain a place for something similar to a cookie to be placed that will opt consumers out of tracking schemes. This isn’t a technological problem at all, it’s just a matter of industry deciding to follow this course.

My other concern is something that fellow TLFer and former CEI staffer James Gattuso pointed out in a 2003 piece in regard to the “Do Not Call” list, namely that the government will likely exempt itself from the rules. In our post-9/11 world (whatever that means) we should expect government–the supposed protector of our rights–to make these sorts of moves. But you don’t have to trust my assertion, look no farther than Declan McCullagh’s Wednesday post at New.com. The FBI is pushing hard for Internet companies to retain data so that they can later sift through it. It’s doubtful that the government will place itself on “Do Not Track” list if they believe they can gain useful intelligence by tracking people online.

So, by and large, this proposed registry seems unnecessary and ineffective. Industry can easily work out a way to allow consumers to opt-out and the two groups I’m most afraid of–the Russian Mob and the U.S. Government–won’t pay heed to any registry anyway.

Instead or wringing our hands over advertisers tracking what duvet covers we buy, can we turn our attention to what our freewheelin’ executive branch is trying to pull-over on us? Seems to me they’re cooking up exemptions to more than just this registry–a few of my favorite Constitutional Amendments spring to mind.

GTA4Salon’s technology writer Farhad Manjoo has some sensible comments about the hullabaloo we’re already hearing about the forthcoming “Grand Theft Auto 4”:

When I watched the game, I caught one sequence that would seem sure to prompt outrage — your character gets falling-down drunk and can, if he wants, steal and then drive a car. The scene is undeniably fun and funny. Admittedly, the humor is low-brow, more in the tradition of “Jackass” than of Oscar Wilde, but it’s still fun; like much else in the game, it’s the thrill of discovery, the sense of, “Whoa, I can’t believe I can do that!” Of course, that’ll be exactly the sentiment of the game’s detractors: Can you believe they’re letting children do that?! This has to be illegal!

Well, actually, nobody is letting kids play this game. It’s rated M, which means it’s for sale to people 17 or older. Kids will still get it, of course, just like they also get hold of R-rated movies and all kinds of perversities on the Web. But nobody — at least nobody sane — calls for movie houses to refuse to play R-rated movies just because kids might sneak in. It’s hard to see why the policy should be any different with video games.

That’s exactly right. Moreover, as I have pointed out countless times before, parents have more and better tools to control video game consumption by their children than any other form of media. And that’s especially the case considering the cost of video games! When a game costs $60 bucks a pop, you gotta wonder how the kids are getting their hands on it. Are the parents just stuffing their kids’ pants full of cash and saying “OK, Johnny, you go buy whatever you want now.” If so, they have only themselves to blame for failing to effectively use the ‘power of the purse‘ to their advantage.

Finally, let’s not forget that gritty, M-rated games like “Grand Theft Auto” are the exception to the rule, as I have proven here.

Dini book cover Dr. Kourosh Dini is a Chicago-based adolescent and adult psychiatrist who has just published a new book entitled, Video Game Play and Addiction: A Guide for Parents. [You can learn more about him and his many talents and interests at his blog, “Mind, Music and Technology.“] Dini’s book arrives fresh on the heels of the fine book, “Grand Theft Childhood: The Surprising Truth About Violent Video Games and What Parents Can Do,” by Drs. Lawrence Kutner and Cheryl K. Olson. [See my review of that book here.]

Like Kutner & Olson’s book, Dini’s provides a refreshingly balanced and open-minded look at the impact of video games on our kids. One of the things I liked about it is how Dr. Dini tells us right up front that he has been a gamer his entire life and explains how that has helped him frame the issues he discusses in his book. “I have played games both online and off since I was about six years of age, and I have also been involved in child psychiatry, so I felt that I would be in a good position to discuss some inherent positives and negatives associated with playing games,” he says. Dini goes into greater detail about his gaming habits later in the book and it makes it clear that he still enjoys games very much.

Some may find Dini’s gaming background less relevant than his academic credentials, but I think it is important if for no other reason than it shows how we are seeing more and more life-long gamers attain positions of prominence in various professions and writing about these issues using a sensible frame of reference that begins with their own personal experiences. For far too long now, nearly every book and article I have read about video games and their impact on society at some point includes a line like, “I’ve never really played many games” or even “I don’t much care for video games,” but then–without missing a breath–the author or analyst goes on to tell us how imminently qualified they are to be discussing the impact of video games on kids or culture. Whenever I read or hear things like that, I’m reminded of the famous line from an old TV commercial: “I’m not a doctor, but I play one on TV.” Seriously, why is it that we should continue to listen to those critics who denounce video games but who have never picked up a controller in their lives? It’s really quite insulting. Would you take automotive advice from someone who’s never tinkered with cars in their lives but instead based their opinions merely upon watching them pass by on the road? I think not.
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Yesterday, I was a guest on the Kojo Nnamdi Show, which airs on WAMU 88.5 radio (Washington, DC’s NPR affiliate), and had the chance to take part in an excellent discussion about the ins-and-outs of student online speech. Specifically, we discussed the sticky issues surrounding online privacy, anonymity, defamation, cyber-bullying, and so on.

The entire show can be heard on Kojo’s site. The other guests were John Morris of the Center for Democracy and Technology, Parry Aftab, the Executive Director of WiredSafety.org, and Reg Weaver, the President of the National Education Association. We attempted to provide parents and educators with some helpful advice about how to deal with these issues when they pop up. We also got into the controversies raised by the anonymous comments left on sites like JuicyCampus.com and RateMyTeachers.com.

[Incidentally, this show was part of Kojo’s excellent ongoing “Tech Tuesday” series. Each Tuesday he dedicates his show to “putting technology in context and assessing its relevance in your life.” It’s a great program. In encourage you to listen.]

For those of you who aren’t avid WWE wrestling watchers, the 3 leading presidential candidates all offered up videos for the professional wrestling crowd recently. McCain’s freakish one is right below and Hillary and Obama’s are down below the fold. They all cracked a bunch of jokes and used what were obviously scripted remarks that integrate in the requisite number of wresting analogies. And they all talked all sort of stupid smack, just like pro wrestlers do. [It reminded me of former candidate Mike Huckabee’s bizarre cultural politics].


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I’ve been rereading Lady Chatterley’s Lover lately, and also reviewing some of the literature about it. The central theme of this book, the rootedness of mankind in his physical body and in “animal” pursuits, is still very fresh today and well worth thinking about (but one notices this only if one is not distracted, as I was when much younger, with looking for the naughty bits, which are a) not very naught b) include not-so-bad descriptions of female orgasms… how does DHL DO that?)(there is a consensus among critics that Clifford’s paralysis is a flaw in the book that makes Lady Chatterley’s departure “vulgar;” I cautiously disagree–that is, if it does make if vulgar, that is part of the point). And I’d not realized before that the book set such important free speech precedents. The litigation surrounding the publication of the book in England and in the United States marked a significant shift by the judiciary of the lower courts towards considering the actual community of readers in conceiving of “community standards.”

If one considers recent history, one might get the impression that the movement of tolerance for offensive speech was steadily growing greater. That is, if one considers only the nineteenth and twentieth centuries, it looks as though tolerance grows continuously, perhaps due in part towards a market mechanism. Producers and publishers continually push the bounds of the scandalous outwards, hoping to gain attention for their works. The public becomes continuously more jaded. If this process continues indefinitely and courts actually pay attention to community standards, this means that the content of what could be considered “obscene” or otherwise offensive steadily shrinks.

Whether this perspective can be maintained, though, depends very much on what period of history one chooses to start with. Starting in the nineteenth century with the Victorians biases the outcome considerably. This was a world in which young wives were permitted to die of veneral disease contracted from their husbands without anyone ever explaining to them how it could be prevented, or even what was wrong with them. Naturally taking this as a starting point of comparison, the category of what is taboo to speak of is likely to seem to shrink, it could hardly grow much larger.

Starting with the ancient Greeks, though, who were forever painting artistic images of couples frolicking about in various positions on their lamps and other household goods, what is taboo seems sometimes to shrink, and sometimes to grow, within certain parameters. One starts to wonder if certain visceral responses to sexual content are not only learned or cultural, but to some extent hardwired, which would be natural for mammals, which we are, after all (back to Lawrence’s thesis).  If this is true, does this justify censorship, or make it inevitable? I think not. That we may react to certain imagery as mammals does not dictate that we must react as censors, by empowering the government to control those things. The risks of delegating that sort of control are too great.

But it does explain, in part, why the battle for free speech is so difficult.

[update: Thinking about this issue further, I realized my discussion of the free speech rights of children could be misinterpreted to cast me as an advocate for eight-year-olds reading some really appalling stuff. No, no, that’s not the point!  (Don’t forget, the parents are still in charge). There is a larger issue, whether the government has more expansive powers to control the speech or religion of children than it does of adults, and an interesting question of constitutional interpretation… how some things that people just seem to assume about reading the constitution turn out to be problematic…]

 

 

 

 

There are a lot of disturbing things out there on the Internet. I don’t think I need to provide an inventory. Occasionally, some of the more despicable sites (think pro-suicide sites or bomb-making sites) capture the attention of public policymakers and bans are proposed. It was only a matter of time, therefore, before “pro-ana” sites made the regulatory radar screen as they did this week when lawmakers in France proposed a measure, “aimed at fighting incitement to extreme thinness or anorexia.”

The pro-ana movement, which refers to people and websites that justify or glorify anorexia or an excessively “thin look” or lifestyle, came to my attention last year when an academic was interviewing me for a new book he was writing about online responsibility. He was asking me what I thought about the idea of liability being imposed on website developers who glorify potentially harmful lifestyles or activities. In other words, an “aiding and abetting” standard for hateful or “harmful” online speech. I expected our discussion to focus on the truly sick or stupid stuff out there—like the bomb-recipe nutjobs or the suicide fans—but, instead, the academic mentioned pro-ana sites, like House of Thin (which no longer seems to be around) and others. The danger of these sites is that they offer young girls, which seems to be the primary audience, very unhealthy advice about how they can use various techniques (fasting, vomiting, laxatives, etc) to become super-thin. Needless to say, that can lead to extreme weight loss and serious health disorders for these girls.

Should sites be banned, or held liable in some fashion, for the harm they cause? We could nitpick about whether of not pro-ana sites cause serious harm to girls, but let’s assume that they do cause some harm. Does that mean the site administrators should be held responsible for the actions of others who read those sites? The French law says “yes.” It would, according to Reuters:

impose penalties of two years plus a fine of 30,000 euros ($47,450) for “incitement to excessive thinness by publicizing of any kind.” The penalties would rise to three years in jail plus 45,000 euros fine in cases where a death was caused by anorexia. The bill was adopted by the lower house of parliament on Tuesday and must go before the Senate before it becomes law.

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Local news. Technology. Dancing. What happens when libertarian bloggers are arrested. http://www.theagitator.com/2008/04/13/so-about-that-tree-of-liberty/

 

 

 

 

Grand Theft Childhood cover Don’t judge a book by its cover (or its title, for that matter). I’m usually faithful to that maxim, but I must admit that when I first saw the title and cover of “Grand Theft Childhood: The Surprising Truth About Violent Video Games and What Parents Can Do,” I rolled my eyes and thought to myself, “here we go again.” I figured that I was in for another tedious anti-gaming screed full of myths and hysteria about games and gamers. Boy, was I wrong. Massively wrong.

Lawrence Kutner, PhD, and Cheryl K. Olson, ScD, cofounders and directors of the Harvard Medical School Center for Mental Health and Media, have written the most thoroughly balanced and refreshingly open-minded book about video games ever penned. They cut through the stereotypes and fear-mongering that have thus far pervaded the debate over the impact of video games and offer parents and policymakers common-sense advice about how to approach these issues in a more level-headed fashion. They argue that:

Today, an amalgam of politicians, health professionals, religious leaders and children’s advocates are voicing concerns about video games that are identical to the concerns raised one, two and three generations ago with the introduction of other new media. Most of these people have the best of intentions. They really want to protect children from evil influences. As in the past, a few have different agendas and are using the issue manipulatively. Unfortunately, many of their claims are based on scanty evidence, inaccurate assumptions, and pseudoscience. Much of the current research on violent video games is both simplistic and agenda driven. (p. 55)

They note that these groups, “probably worry too much about the wrong things and too little about more subtle issues and complex effects that are much more likely to affect our children.” They continue:

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