Gnawing....

Misery loves company; gnawing does, too.  It’s been gnawing at me lately for some reason:  Brown v. Entertainment Merchants Association.  So I have to share this gnawing with you.    

Entertainment Merchants was the case, decided in June 2011, where the Supreme Court overturned a California law that prohibited the sale of “violent video games” to minors and required that such video games be labeled “18” on their packages.

Justice Alito remarked, without dissenting, that “the violence is astounding. . . .  Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . .”  More:  There is a theme of “’ethnic cleansing’ [of]. . . African Americans, Latinos, or Jews” in the video games. 

Back to me being gnawed. 

The part that gnaws me is Justice Scalia’s suggestion for the Court that these vile video games are like. . . literature.  Here, Scalia enlists this quote from Judge Posner:  “[T]he better [literature] is, the more interactive.  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.” 

What?  Maybe I’m missing something here but that can’t be an analogous description for the violent games prohibited to minors by California.  In these games, you—the player—are besieged by people trying to kill you and thus you have to kill them before they do you.  You thus don’t have time to “identify with the characters” and “judge them and quarrel with them” or “experience their joys and sufferings as the reader’s own.”  The enterprise of the game, made unequivocally clear before you even have thought about purchasing it, is that you either kill or are killed. 

And the action is relentless and heart-pounding.  For you are not reading about someone else killing enemies, raping women, and shooting up a mall.  In the video game, you are killing your enemies, raping women, and shooting up a mall, or risk the danger that you will be targeted.  And there is no time to reflect on why you’re doing these things other than to stay alive and indulge your most atavistic impulses.   

There is no time to think, reflect, deliberate, and, most certainly, there is no time to “judge the characters and quarrel with them.”  In short, when you are busy killing people who are trying kill you, you don’t do those conventional things you do for literature.    

Scalia points to violent scenes in Homer, Dante, the Lord of the Flies; violence has been part of our best literature, he insists.  But these works do invite the reader to do those things that Posner recognizes about great literature:  identify with the characters, invite him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. 

The violent video games don’t any of these things.  

Lots of other things can be said about the games, and why the California law should have been declared constitutional.  But the analogy to literature was gnawing. 

Comments

[James Grimmelmann]

You're right: the "interactivity" of video games is not the same as the "interactivity" of literature. The comparison sells games short by understating the richness of their aesthetics and expressivity.

[Unworthy Conversant]

With all due respect, Prof. Kang, I feel I must disagree. I think that, for at least the last decade, games have been ever-trending toward becoming "interactive movies," and straying away from the heritage of coin-operated story-less classics like Pac-Man. Case in point: One of the most frequently-cited violent games is Grand Theft Auto IV, in which the protagonist is a Serbian outlaw newly arrived in the US. It is true that during the course of the game, you experience what he experiences, with all the attendant thrills and fears incumbent upon the scenario; but the game also offers a great deal of reflection upon the worthiness of the violence dealt. Indeed, at its heart Grand Theft Auto IV is a scathing critique of violent criminality, and it achieves this critique - like many of its great forebears in printed literature - by immersing the player in a world rich with story, relationships, and love - all of which slowly crumbles as a result of violence. In fact, after the final credits have run, as the screen fades in from black as the gameplay resumes (you can play many parts of the game after the main story is finished), the character sarcastically comments, "This is it. This is the victory we longed for," indicating without any doubt that violence can, at best, produce only a Pyrrhic victory.

I remember a similar feeling when I read Dostoyevsky's Crime and Punishment; as paranoia grips and slowly destroys Raskolnikov's mind, I remember being rooted in my chair, sweat dripping from my brow, anxiously enduring everything that he was. If that book can be read by minors, then there is, to my mind, no legal basis for prohibiting access to violent video games. Most of the meat of the objections on particular games boil down to matters of taste, which are always too sandy a foundation upon which to build a legal edifice.

[John Kang]

Unworthy Conversant (why the humble appellation for one so articulate?), I'm afraid that I must, in turn, disagree with your position. You mentioned Crime and Punishment and how you were "rooted in [your] chair, sweat dripping from [your] brow, anxiously enduring everything that he [the murderer Raskolnikov] was."

But the violent video games in question do not have you enduring everything that the character is enduring. Rather, the violent video games, much of which, you have to admit, are devoid of any redemptive value, involves YOU--not Raskolnikov--breaking open someone's head with an ax. It involves YOU--not the main character of Mailer's American Dream--violently raping and murdering a woman. And it involves YOU--not the main character of an adolescent novel--pulling the trigger on a machine gun and mowing down human beings. In other words, to return to my original point, the games do not involve feelings of empathy (as you felt for Raskolnikov). They involve YOU telling YOUR avatar to commit unspeakable acts against others. You and you alone are responsible for the rampage which you created.

And let's be clear. I would love for the children of Weston, Florida where I live to come to their public library and pick up Homer, Dante or Golding. But, based on my admittedly random observations over five years, less than .01% seem to do so. Instead, they gorge themselves, at taxpayer expense, on the library's computers, playing utterly idiotic but disturbingly violent video games. And if there is a "rich narrative" in these games, I'm afraid that I don't quite see it. Or, if there is, I wonder if that--this rich narrative, this exercise in empathy and profound deliberation of role reversals--is what draws these hyperactive, often foulmouthed teenaged boys to yell and high-five each other as they blow away another human being or decapitate a foe.

Unworthy Conversant, if only all children were as thoughtful as you undoubtedly were.....

This isn't to say that I'm against First Amendment rights. Indeed, I relish the spirit of insolence that America is built on (incidentally, the word, "insolence," forms part of a forthcoming article, "In Praise of Insolence: Antiauthoritarianism as Free Speech Principle."). So I'm in favor of adolescent pride and the challenge to adult authority. Whatever happened to the generations of teenagers reading that meandering and lonely novel, Catcher in the Rye, instead of trying to rape, burn, and pillage everyone in cyberworld.....

[Patrick S. O'Donnell]

Well said, Professor Kang. I shared part of your post at The Literary Table: http://literarytable.com/2011/08/12/video-games-literature/

[John Kang]

Patrick,
Kind of you; thanks. And nice serendipity that the excerpt made its way to a literary blog.
John

[Unworthy Conversant]

I thank you for your gracious reply, Prof. Kang. I have several poorly-stated and disorganized points in response:

(1) As for my pseudonym, it is both necessary and accurate. It is necessary because I hope one day to join the ranks of the luminaries - like yourself - who populate this blog; but I know that, beyond any doubt, I must first obtain an academic doctorate. This I have not yet done, and so becoming a law professor is still a dream many years from fulfillment. Until then, though I dare to speak to you all because I believe that ideas should triumph over celebrity, it is unwise to parade my name in front of those who may one day be reviewing my articles or CV. And the name is accurate because - not being a professor - my participation in these posts can be fairly likened to that of the well-intended but ignorant child, asking stupid questions at his father's desk.

(Frankly, though this is entirely off-topic, I believe that ideas should always stand or fall on their own merit. It is always regrettable when a once-brilliant scholar posts drivel that is lauded merely because of its noble source, and it is always regrettable when a brilliant idea is discarded for many decades because of its ignoble source; and I've read far, far too much legal philosophy to believe that these irrational biases are not present in the Legal Academy. Though it is not perfect, the Legal Academy could take a valuable lesson from the Mathematical Academy in this regard.)

(2) I believe that the substance of our disagreement is rooted in differing generational perspectives. Based on your conclusion of the intrinsic worthlessness of violent video games and the ease with which you apply such broad categorizations to them, it seems fair to assume you have limited personal experience with violent video games. That is perfectly fine, of course - I'm not stating this assumption as a preface to some ludicrous ad hominem; all people are (within the very broad limits of reason) free to enjoy the diversions which most enrapture them.

By contrast, I was born in 1982. There is no period in my memory in which my sister or I did not have a video game console; and now, as a 28-year-old, I look across this room to my rather modest video game collection, and I note that every last one of them bears the highest rating offered to mainstream games in this country ("M" for Mature) - and all of them have received it for their violent content.

Of course, I cannot speak for anyone but myself, but when I buy a video game, I buy it because the story is so riveting that I want to return to it again and again. I want to relive the excitement, the danger, the ups and downs that the character feels. It's an engrossing rush, without question; but it is the exact same rush I feel when I re-read War and Peace. (I like the Russians, obviously. I've yet to find a native English writer I care for as much.) That similarity, however, leads to a question that is problematic for your argument: If the same pleasures are being derived from two media, and the same lessons are taught by two media, then what is the substantive difference between the two media? I posit that there is no substantive difference between them.

Of course, I do not contend that all violent video games are possessed of eloquent stories and sophisticated moralities - just as I would not contend that all supposedly "classic" literature lies at the intersection of technical perfection and artistic beauty. (For my part, I loathed both A Farewell to Arms and Sons and Lovers so much that I couldn't bear finishing them.) But the context of this discussion is not a preferential list of violent video games ordered from most-ennobling to least-ennobling, created for our own amusement and edification; the context is the the clumsy truncheon of the state, which is in every case more likely to hurt through imprecision and bad administration as it is to help in those few instances in which it could genuinely provide aid.

You mentioned Salinger in your reply, and how you wished younger people would read him. I have had many occasions in my travels to discuss social evils with people of my grandparent's generation; and no name was condemned as universally among that age group as J.D. Salinger. I've read of negative social reactions to his works; younger readers at the time loved them and identified with them, while their elders condemned them as a principal source of negative influence on America's young. You commend Salinger, while your parents' generation condemned him; and you condemn games like Grand Theft Auto IV, while the next generation commends it.

This pattern is no accident, Professor. Every generation has its preferred means of entertainment, and every generation preceding it misunderstands and condemns those entertainments. And when that generation grows old enough to spawn their own offspring, those offspring will have yet different methods of entertainment that will be misunderstood and condemned by their parents' generation.

This inevitability is natural, and not something to be used as a source of individual condemnation; but neither should it be used as a legal basis for those in power to enshrine their personal distaste into the law's damnation.

(3) Perhaps this is showing too much of my libertarian leanings, but I am instinctively offended by laws, like this one, in which parents have ceded part of their parental responsibilities to the state - for no better reason than it provides them an excuse to not perform that aspect of parenting anymore. It reminds me of the old trope about a parent who is deeply offended by their child's sex-ed curriculum, yet who is also utterly unwilling to tackle the topic with their child themselves. It is yet another regrettable instance of our universal natural instinct to "give up and let the grown-ups handle it" - except that the quitters are themselves grown-ups, and the party assuming the issue is the state.

It is a genuine tragedy that so many Americans consider the state to be the next level of "grown-up," to whom they can abandon their responsibilities when they become too inconvenient, as they did to their parents when they were children. This misconception of the state may be widespread, and it may be difficult to eliminate; but eliminating it is absolutely the obligation of the Bench, the Bar, the Academy, and society at large. We can no more indulge this destructive abandonment instinct through the enaction of ill-considered laws than a doctor can indulge a suffering patient's craving for heroin to ease the pains of withdrawal.

(4) Finally, I think you are mistaken about the future prospects of today's violent-video-gaming youth. You made a casual reference to what you imagined my childhood persona to be based on my description of my visceral enjoyment of Dostoyevsky, contrasting it with the foul-mouthed, hormone-addled, bepimpled gamers who haunt Weston's library. I hate to disappoint your marbled imagination of me, but I was as foul-mouthed and reckless as any teenager I knew growing up. In short, I couldn't have asked for a bleaker adolescence or dimmer prospects for my future. And yet here I sit, years beyond such immaturity, reveling in the early stages of a lifelong career. If I can make it here, so can anyone; and your accurate observation of a foul-mouthed, hot-tempered teenager today does not preclude that teenager from becoming a tenured professor, or a federal judge, or the President. (Perhaps especially the President.)

[John Kang]

Unworthy Conversant, there is nothing unworthy about your observations or arguments. I thank you for your thoughtful commentaries. I shan't think we will settle our disagreements, at least not through the stilted medium of a blog, but perhaps I may be permitted these final thoughts.

1/ You will make a great law student, and, someday, a great law professor. It would be my privilege to have you as a student, and a worthy conversant, in my classroom.

2/ War and Peace....my second favorite novel of all time.

3/ To paraphrase a favorite Sinatra song, you make me feel so old....

[Jacqueline Lipton]

At the risk of prolonging (or at least adding nothing much to) the above exchange, I wonder if the difference of opinion in these comments may be in part attributed to different definitions of the notion of "interactivity" in the video game versus literature context. It may not be appropriate/possible for anyone (judge, academic, student etc) to ascertain whether a video game is more or less "interactive" than a novel because it's not really a quantitative inquiry (eg "how much" more or less interactivity in one medium versus the other).

My own take is that these media are "differently interactive" ie the interactions the reader/user has with the medium are qualitatively different so it is not really a question of "quantity" ie "how interactive" they are in relation to each other. With a book, the quality of the interaction lies in the mental activities of the reader in imagining his/her interpretation of the picture painted in words by the writer. With a video game, the quality of the interaction is more physically participatory ie the world is already graphically drawn for the game player (like a movie), and the player experiences it through a physical interaction. The physical interaction involves mental activity ie working out how to interact with the game and enjoying the graphical storyline. But to my mind that is a different KIND of interaction than sitting back in a chair and re-imagining the world the author has painted with words in a book.

[John Kang]

Jacqui,

I would agree with your distinction, especially the apt reference to the "physically participatory" nature of video games. This distinction, I think, begs the question of whether playing a violent video game is perhaps more conduct than speech, and thus subject to greater regulation than speech; just a thought.

[Jacqueline Lipton]

Except that the game in and of itself is not "conduct". It's not conduct until someone actually plays it. So a law that restricts sales of games (cf playing of the games) might still qualify as a law restricting speech ie the act of selling is more like the dissemination of speech than, say, a law that restricts actually playing the games. Just a thought ...

[James Grimmelmann]

John, your exchange with Unworthy Conversant has me curious. Which violent video games are you thinking of? And which of them have you played? I ask because you write with the attitude of a condemning outsider (e.g. "utterly idiotic") but also with great conviction about the aesthetic experience of play (e.g. "YOU ... pulling the trigger"), so it's not clear whether your analysis is based on observation or participation.

[John Kang]

James, I'm flattered by your interest in my biography as a gamer/observer of violent video games. I have played some, mostly because I was goaded by an adult family member who loves such games. I found the games, including Grand Theft Auto, to be violent, bizarre, and, well, rather idiotic.

But that's beside the point, isn't it? What possible difference does it make whether I love the games or contemn them? Suppose, say, you love mac and cheese and I dislike it (which is true, actually, I really don't like mac and cheese; I know, I know--I dislike mac and cheese AND violent video games--I'm positively un-American, but, alas....). If I try every variety of mac and cheese in the world and dislike every single variety, I hardly think it makes any difference, or should make any difference, to you, the mac and cheese lover. Or, suppose that I conclude that I dislike mac and cheese based on casual reliance on second hand hearsay. Again, what difference should it to make to you, the mac and cheese lover? You will still love mac and cheese and still think my opinion dreadfully wrongheaded.

The point of the original blog entry was that California had prohibited to children violent video games which were "utterly without redeeming social importance for minors." Now, that language bears a close analogue to the language of obscenity in Miller v. California (US 1973). In the Miller case, the Supreme Court concluded that there could exist some sexually explicit material that was without serious literary, artistic, political, scientific value.

Can there not exist some violent video games that are "utterly without redeeming social importance for minors"? Justice Alito in Entertainment Merchants (that was the California case which I had been discussing) had mentioned games involving players plotting to murder, to rape in a subtext of ethnic cleansing for Latinos, blacks, and Jews. I guess I am left wondering, what possible "redeeming social importance" would such games have for....children--10 year olds?

In fact, I will volley your question back to you, in a somewhat modified form. Since you have probably played more, many more, video games than I, have you not encountered any--any?--violent video games which were "utterly without redeeming social importance for minors"? And if not, how is that that such invitations by these violent game makers for minors (we're talking 12, 11, 10 year olds) to engage in what Alito called "ethnic cleansing" are of "redeeming social importance"?

The question is, I admit, partly rhetorical, but I'm also curious as to what you (a well-versed gamer, perhaps) might say in defense.

[James Grimmelmann]

John, I'm focused on experience with games because it helps make sense of what the aesthetic experience of play is actually like for players. As a mac and cheese eater (and a fairly picky one, not an indiscriminate lover of all mac and cheese), I want to make sure that critics are engaged with the actual experience of eating mac and cheese. "How can you love that? What comes out of the box is always too crunchy and dry to be enjoyable?" No matter how many times we point out that no, you have to cook it first, some of the critics (not all) keep fixating on their claims that mac and cheese is dry and crunchy. So too with games.

This can cut both ways. Some people playing what look like hyperviolent military and first-person games aren't paying attention to the violence at all: the gameplay itself is more about motion through space to avoid dangerous locations. At the same time, lots of non-interactive cinematic cut-scenes in games are the least game-like features of the games: I've seen people make exaggerated claims about games' social relevance based on these two-minute segments that many gamers simply skip. I have seen games that I personally think really wouldn't have much redeeming social importance for minors, but also plenty of photographs, videos, stories, and other media. But we've set the threshold so low elsewhere that almost all games easily pass. The game aspects -- the plan-making, the adaptation to surprises, the attempts to guess what the opponent will do next, the filling-in of a mental model of an unknown space -- these are the places where Scalia's "interactivity' metaphor is, as you note, inapt. But these are also the ways that games offer something aesthetically valuable and distinctive. And they are, unfortunately, the ways that are hardest for non-players to see.

Alito's ethnic cleansing games are an interesting example. First, they're unrepresentative: you won't find them at GameStop, only on white power websites. Second, the reviews I've seen portray them as failures as games: they're fairly generic shooters overlaid with blatant racist messages. They're actually a parallel to the genre of Christian shooters and to far too many educational games, both of which graft a thin veneer of "message" onto a foreign gameplay experience that really could be anything.

[John Kang]

Just when I thought the issue of violent video games was the chief source of our disagreement, along comes mac and cheese.......

[James Grimmelmann]

Mmm, time to go make some pasta.