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? We are getting into metaphysical quicksand here. When Breyer writes that “extremely violent video games can harm children by rewarding them for being violently aggressive in play . . . thereby teaching them to be violently aggressive in life,” he suggests a distinction—as do the other justices—that the boundaries between virtual reality and reality are blurred and fluid, if even they exist at all. And is it the role of the State to regulate and police, the justices ask, the shifting thresholds between these two overlapping realities? Later in his dissent, Breyer cites studies suggesting that—in a body-technology connection reminiscent of David Cronenberg’s Videodrome—the brain’s neural patterns actually change as a result of playing violent video games.
The dispute that language—or any form of representation—can in and of itself be “violent” is strangely similar to an interview exchange between authors Ben Marcus and Brian Evenson in StoryQuarterly in 1995:
Marcus: When writing is called “violent,” a fundamental semantical mistake is being made, unless the claim is that the writing is itself a violent agent. In some ways, a writer can be pleased to see language being accorded the power to destroy objects . . .
Evenson: To render a violent act in language is not at all the same as committing a violent act. The writing itself is not violent, but rather precise, measured, controlled, in the grip of certain arbitrary but self-consistent rules.
In an even murkier and more troubled sense, the anxiety not only about violent video games but about video games in general that weaves through the Court’s decision has more to do with realism than violence. And in this regard, the decision as a whole—the opinion, the concurring opinion, and the dissenting opinion—is a skeptical meditation on the fragility of “the real” in an era when reality itself seems on the verge of being replicated in unprecedented ways. At times the decision—which is over 90 pages long—reads like a crazy hybrid of Marshall McLuhan, Julia Kristeva , and Wayne C. Booth, as the Justices struggle to theorize the meaning of violent video games in our culture. Tensions about realism and art—literature especially—are long standing, and periodically emerge as new art forms experiment with new ways of representing and re-creating reality. In his classic study The Rise of the Novel, Ian Watt suggested that the novel as a new genre in the seventeenth century was indeed “novel” because, in large part, it re-created the feeling of real time for readers in ways that previous forms of literature did not. Watt wrote about “the effect upon characterisation of the novel’s insistence on the time process. The most obvious and extreme example of this is the stream of consciousness novel which purports to present a direct quotation of what occurs in the individual mind under the impact of the temporal flux; but the novel in general has interested itself much more than any other literary form in the development of characters in the course of time.”
For Justices Alito and Breyer (one of the two dissenters, the other being Justice Thomas), it is precisely the immersive, choice based, hyper-realistic, real-time nature of the games that poses an almost existential threat, as if reality itself were in danger of being replicated. It’s as if, during their exposure to the games during the course of the hearing, Alito and Breyer found themselves dropped into some sort of Philip K. Dick world, and it horrified them. “The means by which players control the action in video games,” according to Alito, “now bear a closer relationship to the means by which people control action in the real world.” Breyer goes even further, citing studies which suggest that “the closer a child’s behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm.”
In his frantic, supercharged book The Perfect Crime postmodern theorist Jean Baudrillard (whose words drop and slot into your mind as if formed from heavy metals) wrote that
It is not then, the real which is the opposite of simulation—the real is merely a particular case of that simulation—but illusion. And there is no crisis of reality. Far from it. There will always be more reality, because it is produced and reproduced by simulation, and is itself merely a model of simulation. The proliferation of reality, its spreading like an animal species whose natural predators have been eliminated, is our true catastrophe.
And this shimmering, fragile fear, I think, is what haunts the logic of the Court’s ruling. Not the fear of video game violence per se, and not the typical and familiar fear of virtual reality, but rather the fear of another, second order of reality itself, arriving near the point when it will be indistinguishable from the first order of reality that we take for granted every day. “These games,” writes Alito, “feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage.” And in a footnote, he cites this passage from the book Infinite Reality: “Technological developments powering virtual worlds are accelerating, ensuring that virtual experiences will become more immersive by providing sensory information that makes people feel they are ‘inside’ virtual worlds.”
So while the Court’s decision is ostensibly about the constitutionality of a law that forbids the sale of violent video games to minors, it’s also—at a deeper and more Charlie Kaufman-esque metaphysical level—about the fragility of “the real” in a age when that very concept is under assault. There is something charming and humbling about these Justices, who range in age between 57 and 79, grappling not just legalistically but theoretically with the meaning of these video games, struggling to find precedent for the fast-evolving art form of storytelling and recognizing, with a certain grace and even humor, that, at least for now, the swift and sometimes disturbing passage of ideas through new mediums is too precious to restrict.
——————————– Alito: “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.”  Julia Kristeva, from Powers of Horror: An Essay on Abjection: “‘People which remain among the graces, and lodge in the monuments, which eat swine’s flesh, and broth of abominable things in their vessels (Isaiah 65:4).’ Worshipping corpses on the one hand, eating objectionable meat on the other: those are the two ends of the chain of prohibitions that bind the biblical text and entail, as I have suggested, a whole range of sexual or moral prohibitions.”