WHEN PIXELS SPEAK: WHY VIDEO GAMES DESERVE FREE SPEECH PROTECTION; WHY VIDEO GAMES WILL NOT RECEIVE FREE SPEECH PROTECTION A Dissertation by JOSEPH HAROLD BAILEY Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY May 2006 Major Subject: Speech Communication WHEN PIXELS SPEAK: WHY VIDEO GAMES DESERVE FREE SPEECH PROTECTION; WHY VIDEO GAMES WILL NOT RECEIVE FREE SPEECH PROTECTION A Dissertation by JOSEPH HAROLD BAILEY Submitted to the Office of Graduate Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Approved by: Chair of Committee, James Arnt Aune Committee Members, Leroy Dorsey Patrick Burkart Sarah Gatson Head of Department, Richard L. Street, Jr. May 2006 Major Subject: Speech Communication iii ABSTRACT When Pixels Speak: Why Video Games Deserve Free Speech Protection; Why Video Games Will Not Receive Free Speech Protection. (May 2006) Joseph Harold Bailey, B.B.S., Hardin-Simmons University; M.A., Abilene Christian University Chair of Advisory Committee: Dr. James Arnt Aune This dissertation examines how games have been construed legally and publicly and compares the nature of games to the de facto legal criteria: in order for games to receive free speech protection, games must inform and communicate. In Chapter I, I review the literature surrounding the effects of violent video games. This literature review serves as a foundation for the rhetorical nature of the legal controversy since the controversy has no clear-cut answer to the effects of video games. Instead of a clear “Yes” or “No” answer, game effects researchers can only posit “Maybe” and “No” findings. Game antagonists employed long-shot and shoddy research to argue their case that violent games produce violent people. The next two chapters lay a foundation for justifying why games have become increasingly controversial to date. In Chapter II, I outline a history of games and argue that games became communicative in the early 1990s. As a response to graphically communicative games and congressional bullying, the video game industry created a self regulatory rating board which should have quelled the public controversy. It did not. iv In Chapter III, I argue that Columbine changed the face of the game industry in the eyes of the public, as a matter of public morality. Before 1999, the public viewed games in a positive light, embodying one of America’s pastimes and helping the disabled with their motor skills. After the events at Columbine, the public saw the video game industry as an unruly and rogue force. In Chapter IV, I explain the legal hurtles the game industry faces in becoming protected speech. While video games have become communicative and informative, they likely will not receive free speech protection because of the public scapegoating of the industry during the last two and a half decades. I conclude by discussing the latest Grand Theft Auto “Hot Coffee” controversy and how game developers remain gun-shy about the free speech issue. v DEDICATION To Crista--the bride of my youth and the love of my life. This accomplishment is as much yours as mine. vi ACKNOWLEDGEMENTS Friendship is the greatest of worldly goods. Certainly, to me, it is the chief happiness of life. If I had to give a piece of advice to a young man about a place to live, I think I should say, “Sacrifice almost everything to live where you can be near your friends.” I know I am fortunate in that respect. Clive Staples Lewis My friendships are chief among the blessings in my life and I am thankful for the kindred souls we have found along the way. The DeVores, the Moffitts, and the Stricklands are the best friends we could ever hope for. I am thankful for the Youngbloods and the Hoes- family can be friends, too? I am also thankful for our Abilene friends—the Burkhalters, the Kirles, the Mitchells, the Smothermons- thanks for listening to me complain. I am grateful for the support from my colleagues and my students at Hardin-Simmons. I am indebted to Jeff for pouring so much effort into me over the last decade. I am appreciative to the guys at Beltway who remind me how much fun music really is—“Throw up the rock fist!” Also, Katy has been a wonderful source of expertise and encouragement. Thanks for reading my dissertation and thanks for your cynical humor. Thanks to the Alfords for adopting us. I am thankful for Jim Aune’s help and encouragement through this process. His intellectual prowess is winsome. Also, I am grateful for my peers in Middle Earth: Paul for introducing me to the iPod; Marisa for discussing religion with a straight face; John for playing racquetball (and letting me win) and playing guitar with me; Jennifer and Suzanne for helping all of us socialize despite the demands of reading and writing. I extend many thanks to vii Jeremiah, my political opposite. I suppose politics is a circular continuum and we are closer than we thought. And yes, tumbleweeds are real. Thanks to Mom and Dad for your prayers and your thoughts. I am grateful for the Schwalks—my unwavering cheerleaders. viii TABLE OF CONTENTS Page ABSTRACT……………………………………………………………… iii DEDICATION…………………………………………………………… v ACKNOWLEDGEMENTS……………………………………………… vi TABLE OF CONTENTS………………………………………………… viii CHAPTER I INTRODUCTION: NOT “YES” AND “NO,” BUT “NO” AND “MAYBE”: VIDEO GAME FINDINGS YIELD INCONCLUSIVE RESULTS ........……………… 1 The Video Game Industry From 1980 to 2005………….... 3 Definitions of Key Terms…………………………………. 5 Media Violence Literature………………………………... 7 Cultivation Analysis………………………………………. 13 Video Games as Operant Conditioning…………………… 16 Conclusion………………………………………………… 18 II PIXELS’ FIRST WORDS: A BRIEF HISTORY OF VIDEO GAMES…………………………………………. 21 Becoming Graphically Communicative…………………. 22 No Graphics? No Problem……………………………….. 27 Games’ First Words: “Finish Him!”…………………….. 32 The Entertainment Software Rating Board— Rated “I” for “Irrelevant”………………………………... 41 GTA—The Exemplar of the Graphically Communicative Game…………………………………… 50 Conclusion……………………………………………….. 54 III FROM MICROPROCESSORS TO MORALITY: COLUMBINE, BILL CLINTON, AND BRINGING VIDEO GAMES INTO THE DISCUSSION…………… 56 Pixels Develop into a Public Morality Issue……………. 58 Pre-Columbine Anecdotes: Novelty, Rehab, and Business…………………………………….. 61 ix CHAPTER Page Post-Columbine Anecdotes—“We Told You So”……..... 70 “Advancing an Agenda to Address Youth Violence”…… 72 A Call for Media Accountability: “Helping Parents Make the Right Choice”………………………………… 74 Clinton’s Call for Self-Regulation……………………..... 77 Accountability Despite Self-Regulation………………… 78 President Clinton’s Rhetoric of Community……………. 80 Conclusion………………………………………………. 81 IV ATARI, ALL GROWN UP: PUSHING THE BOUNDARIES OF GAMES AS SPEECH……………… 84 Yes or No? Just Give Us a Ruling………………………. 86 Chronology of Cases……………………………………... 90 America's Best Family Showplace Corp. v. City of New York, 1982………………………….. 91 Rothner v. City of Chicago, 1990………………... 92 Video Software Dealers Association v. Webster, 1992…………………………………. 94 Eclipse Enterprises v. Gulotta, 1997……………. 95 American Amusement Association v. Kendrick, 2001………………………………... 96 Interactive Digital Software Association v. St. Louis County, 2003…………… 98 Analysis………………………………………………….. 100 Games and Obscentity…………………………… 101 Video Games—The Contemporary Public Scapegoat………………………………… 104 Publishers are Inculpable………………………... 108 “Let Freedom Ring”: The Criteria for Protecting Video Games as Speech……………… 109 Conclusion……………………………………………….. 116 V CONCLUSION………………………………………….. 118 Future Implications for the Video Game Industry………. 120 Conclusion………………………………………………. 125 NOTES………………………………………………………………….. 129 REFERENCES………………………………………………………….. 152 VITA…………………………………………………………………….. 162 1 INTRODUCTION: NOT “YES” AND “NO,” BUT “NO” AND “MAYBE”: VIDEO GAME FINDINGS YIELD INCONCLUSIVE RESULTS “I just have one question. Where’d you learn to shoot like that?” “Seven-Eleven.” Michael J. Fox in Back to the Future III In early July 2005, a computer game hacker discovered a hidden scene in a video game—but the game was not just any game, and the scene was not as innocuous as most scenes in video games. The European hacker discovered that if he implemented a custom-made modification (called a “mod” for short), he could unlock an interactive sex game contained within the latest installment of Grand Theft Auto. Dutch gamer Patrick Wildenborg “insisted that the X-rated code was already in the game and that all his patch does is bypass the game’s censor flags.”1 The gaming mod, “Hot Coffee,” did not go unnoticed.1 The point of controversy was whether the hacker added in a certain segment of the game or if he merely unlocked a portion of the game’s preexisting code. In Australia, the Software Rating Board banned the game from the entire country since they considered GTA “more adult than the existing violent, profanity-riddled game play that was on show when the game was first classified.”2 Even New York Senator Hillary Clinton got involved in the video game bashing session of mid-2005, holding a press conference on the issue and publishing numerous press releases. Even though the game industry was and still is required to print a game’s rating on the game’s box, Senator ____________ 1This dissertation follows the style and format of Rhetoric & Public Affairs. 2 Clinton lectured the industry, pointing to manufacturers as the real culprits. She chided, “No wonder these games are falling into the hands of our