On June 27, 2011 the Supreme Court of the United States struck down a California law that would have banned the sale or rental of violent video games to minors, ruling in a 7-2 decision (Brown v Entertainment Merchants Association) that the law was a violation of the First Amendment. While the decision on its face is about the boundaries and horizons of Constitutionally protected speech, it’s also—like previous Court decisions that explore the convergence of artistic expression, ideas, and free speech—a fascinating document of interpretation, as the Justices “read” video games as postmodern media theorists, grappling with everything from the minutiae of photo-realistic graphics to larger philosophic concerns about what it means to become, literally, part of a narrative.
In theoretical terms, the ruling has a lot in common with reader-response criticism, which was pioneered by Stanley Fish and others in the 1960s and 70s in reaction to the New Critics and others who held that the meaning of a text was to be found primarily within the text itself. Reader-response critics shifted the focus away from the text as a sacrosanct repository of meaning (whether fiction, poetry, drama, etc.), and even its author, to suggest that meaning is created in a hard-to-define, super-charged zone of interaction between text and reader, and, even more radically, that the reader in fact activates the meaning of the text. In the Entertainment Merchants case, Justice Scalia’s arguments turn out to embody a kind of libertarian strain of reader-response theory. “All literature is interactive,” he writes, countering those who find special danger in violent video games because of their interactivity. He cites judge and legal theorist Richard Posner: “Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
In his concurring opinion Justice Alito also explores the interactive dimension of video games (such as Mortal Kombat ) although, unlike Scalia, he finds that this quality fundamentally distinguishes video games—in potentially dangerous ways—from the interactivity of books and films. In language which is, paradoxically, a representation of violence in the same way that video game images are a representation of violence, Alito becomes, briefly, a horror writer depicting a gruesome murder, as he describes an avatar who
sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.
“Alito recounts all these disgusting video games,” Scalia writes, “in order to disgust us—but disgust is not a valid basis for restricting expression.” It’s an argument that is both simple and complicated, veering into semiotics: the relationship between the signifier (words or images that represent something) and the signified (the idea or concept to which the signifier refers) is really a matter of imagination. The “real” to which language refers is always a product of language itself, so that reality is cajoled, conjured, and brought into being by the very signs we use to describe it. Scalia flirts with these deconstructive ideas throughout the majority opinion, as when he suggests that “Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its object effects, may be the real reason for governmental proscription.”
All of which raises the question: what does it mean when the sort of reality that the justices legislate is not so much reality per se, but representations of reality, and is there even a difference?