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Brown v. EMA: The Pervasive and Acceptance of Violence


Submitted by Jeremiah Hickey on June 28, 2011 - 3:58pm


First of all, I would like to thank the members of the Blogora for providing me an opportunity to contribute on the recent First Amendment decisions by the Supreme Court. Since its inception, the Blogora has been one of the most important resources for my reading, research, and teaching. Though I am not the one of the most vocal contributors, I may be one of the most avid readers.

To provide a brief background, I am an Assistant Professor in the Department of Rhetoric, Communication & Theatre at St. John’s University in Queens, NY. My research focuses on legal rhetoric, especially in relation to the conflict between rights and democracy in such areas as Voting Rights and Redistricting as well as First Amendment jurisprudence.

At the outset, I should note that I support the Court’s decision in the first case I will discuss, Brown v. Entertainment Merchants Association, Inc (EMA). Though Justice Alito and Chief Justice Roberts criticize Justice Scalia for not deciding the issue on narrow grounds, I support the extent to which Justice Scalia protects video games as an important artistic medium. While I don’t often play video games, I know how important they can be. Even Justice Breyer, who dissents in this case, praises them for their ability to develop critical thinking skills, as well as noting that the military relies on them for training. Furthermore, it is important to note that video games can provide important political messages. For example, Bioshock exists as a first person-shooter game in which the story adapts to the player’s choices in the game and, more importantly, provides a critique of Ayn Rand’s ideology.

For my first post on Brown v. EMA, I would like to focus on the pervasiveness, and acceptance, of violence in American society.

In the majority decision, Justice Scalia strikes down the California law restricting the sale or rental of violent video games to minors (under 18). He argues that video games qualify for First Amendment protection and, consequently, the restriction on violent video games constitutes an unconstitutional regulation of a particular type of speech. Noting that the US does not have a tradition of “specifically restricting children’s access to depictions of violence,” Justice Scalia strikes down the law rather than create a new exception (fighting words, incitement, or obscenity) to the First Amendment Jurisprudence.

The refusal to add a new exception develops from Supreme Court precedent that differentiates between violent speech and obscenity. Justice Scalia notes that “the obscenity exception does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’” In United States v. Stevens (2010), a case that concerns depictions of animal cruelty, the majority states that “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” While this reasoning relies upon appeal to authority --i.e. the Supreme Court says there will be no restrictions because we said there will be no restrictions--and an appeal to tradition--i.e. we cannot add a new distinction because we have never had a distinction--Scalia’s goal is to protect freedom of speech, even bad or offensive speech, from the desires of the community. The reason: communities and cultural attitudes change over time as well as conceptions of good and bad, offensive and inoffensive. To allow for that change is more important than protecting one community at one moment in time, especially when there has never been a history of banning violent speech, even speech directed at children.

Justice Scalia’s protection of violent speech exemplifies not only his view on how pervasive violent speech is in our society, but how he thinks it is important to our society.

During oral arguments, while Justice Alito said that he thought Justice Scalia wanted to know what James Madison thought about video games, Justice Scalia corrected Alito: “No, I want to know what James Madison thought about violence,” especially if there were any exceptions for speech regarding violence. Justice Scalia’s concern for Jams Madison’s thought suggests that Scalia believes Madison would have not only allowed the depictions of violence but would say it is necessary. I would argue this point for two reasons.

The first reason as to why violent speech is necessary concerns the development of virtue. In Scalia’s Republic, children learn a number of virtues, such as strength and bravery, as well as how or how not to act through reading, watching, or playing books, movies, and video games. In his decision, he notes that the, “Grimm’s Fairy Tales, for example, are grim indeed,” Justice Scalia provides example after example in which there is not only violence but violence that plays an important role in relation to the plot development or the moral of the tale. In the Grimm’s version of Cinderella, the evil step-sisters “have their eyes poked out by doves” in retribution for their cruelty toward Cinderella. It is only in our modern (read Disney) version of the tale that nothing violent happens to Anastasia and Drizella; their only punishment is to watch Cinderella marry the prince. Even this punishment is short-live since, by the third installment of Cinderella, Anastasia finds a suitor.

For the development and protection of the Republic, the virtues of strength and bravery are necessary. The classical tale of Beowulf, or its modern reincarnation as a motion picture, presents a tale that attempts to instill the virtues of strength and bravery. In a twisted way, The Sopranos and Grand Theft Auto instill the virtues of strength and bravery as well as commitment to family. Since, as Justice Scalia notes, video games communicate notions of narratives, virtues, and vices, trying to ban video games, no matter how gruesome, overlooks the lessons that minors could learn from reading books, watching television, or playing video games.

Furthermore, standing up for the protection of rights serves as another important lesson for citizens of Scalia’s Republic. While the decision seeks to protect the content of video games, it also provides a lesson that rights are important, especially when their exercise faces threats by members of a community. Though this decision may ask citizens to develop a “thick-skin” when they face speech that may be “bad” or “offensive,” the Republic will be stronger knowing that citizens will be defending fundamental rights.

In his dissent, Justice Thomas argues that the Republic requires the cultivation of virtuous citizens. The snarky but serious response to Justice Thomas would be that, at times, the Republic requires soldiers to defend it and, with today’s video games, these soldiers may do a better job of protecting the Republic. Though Justice Thomas’s decision concerns the rights of parents, a subject I will discuss later in the week, he does seem to suggest that only “good” speech leads to the virtuous development of citizens, a notion that Justice Scalia is correct to reject.

The second reason that violence is important concerns the development of entertainment for the community, along with the development of moral guidance. Scalia’s reliance on U.S. v. Stevens means that it is up to the American people to decide what speech is good or bad, inoffensive or offensive. By placing the locus of control within the individual or family, it allows the smaller units of society to shape their own mode of moral conduct.

In his concurrence, Justice Alito would allow restrictions that limit the sale of violent video games because he feels that this type of violent speech stands outside the socially acceptable limits of violence. Justice Alito does not concern himself with violence in general or even violence in the entertainment industry, but just violence in video games. In particular, he argues against what he finds disgusting: games in which people can spend hours “controlling the actions of a character who guns down scores of innocent victims,” e.g. Grand Theft Auto, or games that reflect an “anti-social behavior”—e.g. games that allow users to reenact Columbine. Continued immersion in a world of violence, especially this “disgusting” violence, will diminish the ability of “impressionable minors” to make the distinction between reality and fiction. Or, said another way, immersion into a simulated world of violence will lead to development of a material life of violence.

Yet, this argument creates a distinction between socially accepted forms of violence and socially unaccepted forms of violence, the definitions of which seem to hinge on levels of participation. Socially accepted forms of violence, such as violence in movies and television, would be fine. Socially unacceptable forms of violence, such as violent video games, are not fine. Citing an amicus brief, Justice Alito notes that in the future, virtual-reality games will allow participants to “actually feel the splatting blood from a blown-off head.” Since participants possess an “unprecedented ability to participate in the events”-- by creating avatars, choosing the direction of the game, or simulating an activity in a game, such as swinging a bat at a baseball or a skull--the level of participation exceeds that of other forms of entertainment. If these development trends continue, then “troubled teens” will be able to “experience in an extraordinary personal and vivid way what it would be like to carry out unspeakable acts of violence.”

Of course, these “troubled teens” could watch as many violent television shows or movies that they desired. They could sign up or try out for the local football team and, in some cases, hockey team and experience “unspeakable acts of violence.” However, for Justice Alito, there may not be a problem with this because those teams are “socially acceptable.”

Instead, Justice Alito targets the “troubled teens” that play video games because the people who like to play disgusting, anti-social video games seem like the type of people who only interact with their console and their game in a basement away from other productive and social members of a community. Violence in hockey (and note, I do like hockey though I dislike the fighting), would be fine; violence in video games needs to be subject to regulation.

To counter this position, Justice Scalia collapses the distinction between “high art” and “low art.” He notes that “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones.” After reading this, it seems that Scalia would certainly not waste his time playing Mortal Kombat but that does not mean that other people cannot waste their time enjoying it. According to Scalia, the First Amendment allows individuals to waste their time just as it allows individuals to cultivate their minds. The difference between wasting and cultivating your life, between enjoying crass discourse or developing a sense of taste, is a decision best made by the individual or the family and not the community.

This interpretation of the First Amendment provides some individuals with the opportunity to rise above “bad” or “violent” speech and develop their minds while allowing some individuals to waste their minds by stealing car after car and shooting up Liberty City e.g. Grand Theft Auto. Since, as Scalia argues, the potential harm from playing violent video games is nonexistent or negligible at best, the First Amendment caters to all of these moral choices. While some individuals succeed at life because they avoid video games or rarely, if ever, play them, others may waste life by practicing Sub-Zero’s finishing moves for hours on end. Some citizens may even succeed at life even though they play game after game. The Republic, according to Scalia’s view, will succeed, especially when it realizes that the attempt to regulate the violence in the medium of video games is no different than the failed attempts to regulate violence in dime novels, comic books, and motion pictures.

From high school, college, or professional football to the latest installment of Snow White or Die Hard, violence is inherent in our entertainment. Consequently, according to Justice Scalia, Mortal Kombat will not be the end of the Republic. That is, of course, unless the community chooses to censor it.

Submitted by Jeff Willey (not verified) on June 29, 2011 - 6:41am.

We are suggesting here that the United States' military, and the Army in particular, have successfully created a piece of software that shapes the opinions of its target audience, yet has been unable to do so in Iraq or Afghanistan after nearly a decade of marshaling all of their assets.

As an Army officer, I think you give this organization too much credit. I was once an avid gamer and still partake in video gaming from time to time, but it is foolish to believe that a video game is representative of military life. Furthermore, recruiting strategies are also designed to RETAIN forces. Creating a video game as a simple recruitment tool would fail in this aspect - if recruits believed they had been duped they would leave after the expiration of their 4-year commitment. I would also have qualms about a strategy that attempted to recruit a target audience that is in large part physically inactive.

So what is America's Army? It is a platform to disseminate information about an organization. Most Americans are completely unfamiliar with their armed forces' capabilities and components. Through entertainment, the Army found a way to subtly inform an audience (video gamers) that the military is not solely comprised of combat arms forces. There are classes used to unlock different features within the game (medic qualification and things of that nature).

America's Army is produced by the U.S. Army and is distributed for free - I can see why there may be some concern from a financial standpoint but not morally or ethically. But how is this really so different from companies using their software platforms designed for military training to put out a civilian counterpart? (see: Full Spectrum Operations, Operation Flashpoint, ArmA). How is this so different from films created in collaboration with the US military? And what about the most popular forms of 'militainment' like the Call of Duty Modern Warfare series?

Recruits enlist in the military for a variety of reasons - Personal reasons. If, for example, a high school student is exposed to the Army Values and decides to join, is this considered propagandizing? I don't think so. As I have already mentioned, I see America's Army as an information platform based around a first-person shooter form of video game entertainment.

And why use violence? At its core, the function of our military is to force one's will upon the enemy. This is usually done through closing with and destroying the enemy; Everything else supports that function or shapes the environment to facilitate that function. The military is inherently violent and any depiction of it must therefore include violence.

But violence is only the surface. America's Army does not portray this as well as Full Spectrum Operations (FSO), but combat is methodical as well. There is a science to the shifting of fires to create safe areas of movement for friendly forces and block enemy advances. On the surface there are just two groups shooting at each other, but real combat is much more complex, as are some of the best games which portray military tactics. Killing is an afterthought in this context. Many of my friends and I who play military-based games (Company of Heroes in particular) are maneuvering units to capture terrain and compete against each other - on screen deaths are an afterthought.

Pokemon is inherently violent, but I don't believe I have ever seen parents in an uproar because a child was strolling around a neighborhood throwing balls at small animals.

Submitted by Luke Lochart (not verified) on June 28, 2011 - 9:29pm.

As an avid video game player and opponent of most (although not all) US military activity at the moment, I'm intensely skeptical of the claim that AMERICA'S ARMY is a highly effective recruitment tool. Although I recognize that I lack a statistical argument here, I can say that gaming forums, gaming social groups, and other video-game related communication avenues show almost no content regarding America's Army, a game which is over half a decade old. Although there are similar military-themed games in existence, they are not directly promoted or supported by the United States Army or other branches of the military.

This legislation would not, of course, have affected AMERICA'S ARMY. One of the selling points of AA at the time that it was popular was that, unlike other multiplayer shooter games, it was completely free - and thus would have eschewed the sales restrictions California sought to impose. It's possible that the law - which I have not read in detail - would have placed restrictions on free downloads by youth in California, this would have been nigh-unenforceable, not only because of the difficulty of finding a way to take ID from people over the Internet, but also because it's facially easy to "spoof" an Internet address outside of the state where one resides.

If we do buy the argument that video games might be an effective military recruitment tool, it's worth keeping in mind that movies probably are as well, and that the case law regarding film - which was at one point a "new medium" - are well-settled. Creating special exceptions for interactive media would raise any number of definitional and enforcement problems.

Finally, I'm going to raise a point which is probably going to be read as spurious or superficial, but which I think is important anyway. Video games are a fringe medium at the moment. They're becoming less so, but they are a form of entertainment mainly practiced by those who are subject to forms of social violence - particularly bullying. The so-called "nerd" is subject to any number of restrictions, hostilities, and attacks by her or his peer, especially when young. The violence embodied in popular sports practiced by young people who are members of mainstream social groups - football, soccer, baseball - is socially accepted and uncontroversial, but the history of imaginative mediums such as video games, and, during the 1980s, roleplaying games such as DUNGEONS AND DRAGONS, shows a consistant social reaction filled with hostility, and I would argue that this hostility is due far more to a desire to marginalize those who enjoy the entertainment in question than an honest objection to the content.

Submitted by elizabeth on June 29, 2011 - 8:07am.

You do your obsessions a dis-service, Luke.

We can no longer call gaming a fringe anything, since in the last two years that gaming industry, from coding to conventions, has brought in more money than the movie industry, the comic book industry, books...gaming is the most profitable media industry in the world. And that isn't just in the US - this is worldwide. If gaming is fringe then we have to seriously re-negotiate what we mean by "mainstream." And the profit margin is even more amazing when one considers that, with the exception of the Wii, companies lose money on every console they sell. The hardware itself is a loss - the profit comes from the games themselves and any merchandising after the fact, so all of that money is made AFTER an overall loss just to get their tools out to their market.

Which is why I think ALL of the issues raised here are so important. I am, admittedly, not a gamer. I am, however, married to one, and socialize with many more, so I am pretty fluent in the language, if for no other reason than I need something to talk about at get-togethers. And there are a few things I have learned from conversation, reading all the gaming magazines that are laying around my house, and the tech news sites we frequent.

1) Demographics are not at equilibrium. From what we can tell, it is still a man's world out there, but nobody wants to come down on hard stats because everybody knows that female gamers tend to lie about their sex so they get left alone. As for the age difference, that is slowly equaling. More and more adults are identifying as gamers, but the target marketing audience still tends to be young men - generally in the teenage years. Teen age boys tend to play FPS (first person shooters), except for the early-onset hard core gamers, who might be engage in RPGs (role playing games). So the CA law is important not only because of the money issue, but because there is tension between two groups of gamers. Grown ups who feel like they have a right to express/consume as they see fit, and children who may not be ready for what are, quite frankly, some pretty atrocious images (I believe it is Alito who provides a pretty little list for us, and Scalia takes him to task for it). Game designers tend to do a good job of "rating" their games. Kids can look at the letters on the front of the box and know whether it is or isn't generally appropriate for their age as it stands. So what else should be done? The CA law was one answer to that question.

2) The Court is establishing the potential for a whole bunch of sub-categories here. They claim they are trying to avoid that, but (as some of you know, I side with Breyer here, regardless of his odd insistence on claiming that inconclusive social science is factual) the majority establishes that we can censor based on sexual content for minors, but not based on violence. The latter would be a violation of the First Amendment, the prior is not. In my mind, this is where not just gaming, but all media should be paying attention. What other sub-categories could possibly exist? I don't find Scalia's argument consistent. I feel like he is making an assumption that I am not - perhaps if he were explicit in that I'd be happier with him, but as it stands it seems to me he is claiming that he refuses to create a situation in which material might be denies to minors based on content, when that happens every day.

3) As for the Army recruitment issues, I think the opinions of the Court address that when they claim that they do not differentiate games from other forms of media in that ANY of them can be used to push and ideology. Gaming, so sayeth the Court, should receive no special protection, or special scrutiny, for being used for a person's or group's particular ends. That may seem the simple gal's response, but I'm ultimately just that - a simple gal. The Court seems to have addressed it, in my mind. Now whether that is acceptable is a whole other ball of wax. One thing Scalia and I would probably agree on is that we cannot control how information is used. Such is democracy.

So, while certainly I think Scalia makes good points about protecting ideas, I think he does so at risk of looking inconsistent. As Jim has pointed out before, there is this weird idea among some ideologies that somehow sex is the most absolute evil thing in the world, but violence and other questionable activity is okay. I think that's my hang-up. I'd like to see cleaner lines drawn. However, looking at the opinions it is also easy to see how moving in that direction can be just as sketchy. Like so many free speech cases, I think this is just another example of how fine a line we walk when we try and negotiate what it means to be able to freely express ourselves.

Submitted by Luke Lochart (not verified) on June 29, 2011 - 9:38am.

First of all, you'll get no argument from me that the Court's position on sexuality is absurd. Quite bluntly, I'm confident that at least some members of the Court recognize this, and would undo it if they could, but can't without a stir and violating traditions. In that sense, this decision can be read as refusing to engage in picking at a wound.

In response to my "obsessions," I have to fundamentally disagree that video gaming as a culture has become mainstream. Certainly, there are corporate interests invested in it to a massive extent. That's true of higher education as well - walking around the campus of a major U.S. university, I can identify all sorts of corporate intrusion into the Ivory Tower, and those of us with connections to Texas can speak directly to how the corporate agenda is shaping how we teach and study. Despite this massive investiture of cash and money into shaping what the academy is and what we do, however, it's still awkward and vaguely off-putting to say to someone "I want to teach" in response to "what are you going to do with that degree?"

So, yes, there's a lot of money in video games. Because of that, ideologically video games are invested with the same sorts of problematic themes, narratives, and agendas that Hollywood movies and RIAA-produced music are. None of that would be changed by allowing a stricter standard for regulation of video game content than allowed for any other medium. Remember, this isn't "violent video games" versus "sex" as a standard, where "sex" can be regulated and "violent video games" cannot. The decision fundamentally reaffirmed the already existing paradigm which allows stricter regulation of media containing explicit sexuality; presumably, regulations on the sale of pornography to minors can still regulate the sale of pornographic video games to minors. The Court refused to create an additional category based on the interactivity permitted by "new" technology.

Had this decision gone the other way, potential for innovation in video games - some of which might introduce newer, less restrictive narratives and mediums - would have been [i]reduced[/i]. While you accurately point out that the largest market for video games seems to be men in the 18-30 range, this is by no means a dominant enough market that others can be ignored - more on this later - and thus it's likely that games would become rather aggressively inoffensive if laws like California's caught on. See what happened to comics following the Seduction of the Innocent scandal.

Like I said, I agree with you that sexual content shouldn't be a special exception, but what I'm trying to get across is that Scalia and the majority didn't create this special category exception, nor did they add to it. In fact, they refused to create an additional exception for "violent interactive content." The existing damage from the sexuality exception is a horse than has already sailed, to intentionally mix metaphors rather brutally.

Finally, on the issue of "fringe"-ness, that's a post for another day when I can organize my thoughts better. For now, I'll just reiterate what I said in response to Adria below: there's a difference between "everyone who buys video games and consoles and contributes to the profitability or lack thereof of the associated industry" and "people who integrate video games with their identities, or consider it a major leisure activity." I would go so far as to note that certain problems you allude to above, Elisabeth - particularly the pervasive and unwelcome sexualization that many female gamers are forced to experience - are issues that invite an academic investigation, but are not likely to be explored sufficiently until academics are willing to treat video game culture sympathetically rather than as a dangerous "other."

Submitted by Adria on June 28, 2011 - 9:52pm.

I figured I'd be taken to task for moving away from the Supreme Court case at hand, but that is kind of my point:

Absolutely it's part of a larger entertainment strategy of the military. Peter Singer (cue Aune's disgusted sigh) calls this, "'militainment' — where the military is drawing from entertainment for its tools." Do I have a problem with military targeting youth video games and high schools? Yes. And I'm not sure it's as SIMPLE as a free speech case.

In 2008, the ACLU tried to raise this issue, arguing that the United States "...failed to uphold its commitments to safeguard the rights of youth under 18 from military recruitment and to guarantee basic protections to foreign former child soldiers... U.S. military recruiting practices... target children as young as 11...The Army uses an online video game, called 'America’s Army,' to attract young potential recruits at least as young as 13, train them to use weapons, and engage in virtual combat and other military missions... According to Army personnel testimony before the Senate Armed Services Committee, the goal of the then-new recruiting effort that included the 'America’s Army' video game was to penetrate youth culture.. the Army’s video-game development team found that about 60 percent of recruits had played... more than five times a week, and four out of 100 said they had joined the Army specifically because of the game."

The information about the army recruitment through video games is 2010, despite the game being over a decade old. Violent video games may not be my personal thing, but I stress again it's not the violent video games that bugs me. It's that maybe this isn't about free speech, but about a particular need to keep particular institutions marketable and sustained when there is no mandatory draft. And the audience of THOSE messages most certainly ARE youth under 18.

Submitted by Luke Lochart (not verified) on June 29, 2011 - 9:53am.

I wanted to respond to this again, just to note that I think a closer investigation of video gaming from a more sympathetic perspective will reveal all sorts of interesting phenomena that have not yet been engaged on a substantial level by the academy. I want to note that what I'm about to mention is in no way meant to deny that 1) video games, like other forms of media, contain ideologically problematic elements, including classism, nationalism, sexism, and homo/trans phobia and 2) video games, by virtue of the expense of acquiring the necessary hardware to play them, are still a somewhat "elite" recreational activity, initially disseminated through society by virtue of suburban forms of economic organization targeted at middle-class White Americans, and only later adopted by more diverse groups.

However, game developers are not universally developing mindless killing simulations targeted at American nationalists, and unfortunately the 24-hour news cycle generates rage against very particular games from both "right" and "left" positions, thus obscuring a lot of interesting products that come to be represented by a one-paragraph blurb of controversy. I'm just going to list a few examples of games which either elude problematic elements associated with video games, or are perhaps problematic in interesting ways that have not yet been recognized.

-Alpha Protocol: a game where the player takes control of a rather stereotypical, Jason Bourne-type spy, who is working for an organization that's part of the American government. In spy-story style, he's quickly double-crossed and realizes that this is a plot by not-Haliburton to start World War III. A stereotypical and hackneyed plot, but certainly not jingoistic in the sense that I'm getting a lot of academics think video games tend to be. But what I think is far more interesting is that it's possible to make it through the game without killing anyone, and the game rewards this behavior. At the end of each "missions," the player has the option to review various statistics about their spy's performance, such as weapon accuracy, number of times detected by security, and so on. One of these statistics is the number of children who are now orphaned as a result of the player's actions. If one identifies with and gets into their character's mindset, as the game encourages, keeping this number low becomes something to aim for. The story also changes based on whether the player uses violence excessively; given that it's a spy story, there's lots of double-crossing and side-switching, and acting like a stereotypical action hero leads the player to alienate factions that might otherwise help their character.

-Dragon Age II: the latest product from Bioware Inc., this game is sort of the culmination of Bioware's decade-long quest to increase GLB visibility in video games. They famously tried to insert gay and lesbian romances into a Star Wars product they were developing, and were allegedly told "there are no gays in Star Wars - a position that Lucasfilm reversed just a few years later when they saw more percentage in it, of course. (Bioware still snuck the option for a female character to be lesbian into the game, but made it part of the subtext rather than explicit.) Bioware games usually allow the player to decide their character's sex; previous games have usually had several possible heterosexual relationships that a character can pursue, and one or two gay or lesbian ones, which has led to disappointment from GLB players who wanted to pursue a character who is marked as exclusively straight. In DA2, the designers chose to make all characters possible love interests for the main character, which provoked major controversy among the (largely juvenile male) populations of their fan forums. Rather than caving to fan criticism, Bioware implemented a hate speech code on their forums and became even less tolerant of homophobia. At the same time, they've been called out for not recognizing trans gender characters in their games.

Again, my point is not to say that video games will save the world and fight injustice, or even that they're not in the big scheme of things an elite, bourgeoisie recreational activity. I do think designers, writers, and players of games deserve a bit more credit, and I think the hypermasculine, anti-intellectual imagery that we often see representing games is not entirely accurate.

There's a lot of problems in gamer culture - in particular when it comes to race and gender. African-American characters in games are often de-raced or used as tokens, and female characters are sexually objectified even more so than in Hollywood, and these problems carry over into convention circles (where sexual harassment of female fans is endemic) and the overall perception that there are no minority gamers. But this isn't going to be addressed unless academia is willing to have an honest conversation with gamers instead of viewing them as wayward children who need to be saved.

Submitted by Adria on June 28, 2011 - 9:59pm.

Lugo (cited in my first response) gets into the game, America's Army, being free, and the deception therein. He also explains that this doesn't end with America's Army:

It should be noted that unlike America's Army, the military does not own the rights to Full Spectrum Warrior. Instead, the game is owned and marketed by Pandemic Studios and THQ. In fact, on the back of the game box, in fine print, reads "This game is not sponsored or endorsed by the United States Army." Why would Pandemic Studios and THQ make this lack of a relationship so explicit? The answer to this question is found on the very same box. Written above the previous statement, large, bold print reads "based on a training aid developed for the U.S. Army." The relationship between Full Spectrum Warrior and the Army is popularized in
every review and press release about the game and no doubt adds an element of legitimacy the game would not have had if it were not in some way related to the military. The message from THQ and Pandemic is clear: for an authentic military experience, buy Full Spectrum Warrior. And to the Army's credit, there is no game like it. People who have played the game have commented on the unique, deliberate, and methodical movements necessary to complete it. Any attempt to rush through the game is a near impossibility This is in contrast to other military games which rely on one individual, many times with unlimited ammunition and health. Because of the commercial and recruiting success of Full Spectrum Warrior, the Marines have now released their own training simulator. Close Combat:
First to Fight, in April 2005. Not to be left behind, the Air Force is also developing a video game which they will offer for free.

...Developers have answered this expectation with load times that often last less than a second, sometimes appearing only as a momentary
glitch. This is an area where America's Army, by not having profit as a primary motivation in its development, deviates significantly from the norm. Instead of long load times being taboo, they become a necessity and an opportunity. This is evidenced by the fact that America's Army is riddled with load times, often lasting for over twenty seconds! During
load times the following message is displayed:

I am an American Soldier.
I am a Warrior and a member of a team.
I serve the people of the United States and
live the Army Values.
I will always place the mission first.
I will never accept defeat.
I will never quit.
I will never leave a fallen comrade.
I am disciplined, physically and mentally tough,
trained and proficient in my warrior tasks and
drills. I always maintain my arms,
my equipment and myself.
I am an expert and I am a professional.
I stand ready to deploy, engage, and destroy
the enemies of the United States of America
in close combat.
I am a guardian of freedom and the
American way of life.
I am an American Soldier.

For those unfamiliar with the previous passage, it is known as the Soldier's Creed. Only recently created, in November 2003, the Soldier's Creed is given to every soldier (as a wallet insert) to ensure they
remember the Army's values. Lines 4-7 of the Soldier's Creed, also known as the Warrior's Ethos, are printed on all Army dogtags, and thus must be worn at all times.

Submitted by Luke Lochart (not verified) on June 28, 2011 - 10:10pm.

A lot of games aim for authenticity, though. I don't deny that people interested in the army might be more likely to play Full Spectrum Warrior; but honestly, there are any number of problems with associating this with Army recruitment.

First of all, again, Full Spectrum Warrior is a game I've never heard of. I don't see it on the shelves of the game store I visit often. It's not one of the "top games" that people play. And load times simply are NEVER less than a second. There are tons of non-military-related games that display messages while loading information; this is simply a function of how games work.

All of the examples you provide could be shown in a movie for equal effect. On what grounds, other than the well-defined phenomenon of moral panic, do you argue this is different? Video games are new technology but use old story-telling techniques.

Submitted by Adria on June 28, 2011 - 11:02pm.

The arguments based on ethos make me nervous here. I cannot argue that you, an avid video game player, sees/hears of/ or plays these violent military games. And I can offer my own: Since being recruited in high school himself, my fiancé, who served in the military (overseas in both Iraq and Afghanistan), almost worked recruitment when he came home from overseas (but wouldn't), teaches high school students, and is a member of Veterans Against the War, continues to deal with the various methods with which the Army tries to recruit youth under 18; one increasingly common method today is this "militainment." But I’m not really sure that any of this is helping either of us make our case. With the restrictions on movies, cds, etc, I echo your question: why is this suddenly different? Moreover, as the rhetorical strategies of the military shift in these new mediums, do we want anything to be different for children under 18? Or, as Jeremiah will get at in his next post, is the burden entirely on the families/parents to offer that kind of protection/exposure?

In the end, an argument for or against violent video games, specifically ones that aim to recruit, as I have tried to bring into this conversation, will not, as Jeremiah has said elsewhere, prevent violence. That’s why this case and discussion nags at me: I am dissatisfied with attempts at restricting this conversation to free speech doctrine. Moreover, the Supreme Court operates, as Jeremiah pointed out, within appeals to their own authority and tradition, which makes me feel like we might be missing a larger-picture kind of conversation.

Military recruitment quotas are down in the face of Iraq and Afghanistan, which means new tactics for recruitment are full-force. With the blood lost, the money spent, and the lives ruined, I’m not sure that reducing concern for "militainment" (specifically as it directly impacts youth under 18) in ANY form should be a discussion charged with mere “moral panic.” But maybe I’m suffering because I’m not adhering to time, place and manner constraints.

Submitted by Luke Lochart (not verified) on June 28, 2011 - 11:13pm.

Adria, I suppose my question to you is this: why support a form of legal restriction which, at large, will do nothing more than hurt people who already catch a lot of flak (military metaphor recognized) for being "weird," "creepy," or "abnormal," when more mainstream forms of "militainment," like football, remain totally legal?

I don't mean to use the ad hominim fallacy here, so much as point out what I see as a purely utilitarian double standard here. John Wayne movies like SANDS OF IWO JIMA have been recruitment stories for ages; even BEOWULF could be read as a militaristic upholding of hegemonic masculinity. Video games, most of which are violent, tend to be a form of entertainment enjoyed by men who reject conventional masculine norms and are not typically the primary targets for military recruitment.

As far as "arguments based on ethos," like I said, there's no statistics here. But I'm intensely skeptical of the perceptions of people who don't play video games - which is most reporters who talk about this issue - talking about these sort of issues. My game console can't even play AMERICA'S ARMY, and yet I sort of feel that I'm being asked to defend that game.

Submitted by rhosa89 (not verified) on June 28, 2011 - 9:26pm.
Submitted by Adria on June 28, 2011 - 8:09pm.

Jeremiah, this post is fabulous, and I hope that you will post more, even after your future analyses of Brown v. EMA.

I'm not sure how I feel about this decision yet, and I enjoyed reading this post and look forward to your next one because they are helping me work through.

My biggest problem here isn't that playing violent video games has a direct correlation with violent behavior on the streets. My biggest concern is the use of violent video games by the military as a recruitment tool (and a SUCCESSFUL one, at that: studies are finding that "America's Army"--a video game--"has had more impact on actual recruits than all other forms of Army advertising combined"--see NPR's 2010 article). I think we're spending an awfully large amount of energy and time making this a First Amendment issue, and side-stepping the material consequences of our political system. How the military recruits our YOUTH (from entering high schools to having "Dumb Day" to making video games) should be a HUGE concern for rhetoric scholars in our field, and not because it is free speech. These games are used as advertising and recruiting tools, and I would think that would be an issue for discussion when we talk about "the development and protection of the Republic."

Civil liberties groups have been trying to talk about military recruitment strategies for awhile now, and I feel like we're missing an opportunity to do just that.

See also Sociologist William Lugo's research.

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