I love empirical confirmation of my views, especially when I wasn’t expecting it. You may recall that I recently wrote an article for On the Square defending the Supreme Court’s decision in Brown v. Entertainment Merchants Association , which struck down on First Amendment grounds a California statute that prohibited the sale of certain violent video games to minors without parental consent. One argument that never occurred to me was that some games affected by the statute might actually be good for minors to play. But, it turns out, this is actually the case.

Writing in the July 18 print edition of National Review (not available online, as far as I can tell), James Lileks describes a game called BioShock

While the dead-eyed child squirms in your hands, piteously begging to be freed, the voice in your head gives you a choice: kill it, or save it. You suspect that there will be consequences either way.

That’s a scenario in the video game BioShock , and you can imagine the outrage: This is entertainment? What sort of culture produces such depravity? Perhaps this will help: The child is possessed by drug-induced insanity, she’s accompanied by a lumbering robot that wants to kill you, you’re in a ruined underwater city populated by people driven made by genetic manipulation, and the entire story is about a society constructed along the principles of Ayn Rand . . . .

BioShock rewards your humanity, plays with your loyalties, picks apart your character’s sanity. It’s a way of telling a story that some hesitate to call Art, because unlike Tolstoy, you can shoot fireballs from your hand. But for kids who grew up controlling digital alter egos, it’s high literature—and was probably illegal for minors in California. Until the courts weighed in . . . .

By the way, if you release the child in BioShock , you get all sorts of rewards. Never met a gamer who didn’t let the kid go.


So there you have it. The California statute was sweeping away the innocent with the guilty. And as Abraham said to the Lord, Far be it from you to do such a thing, to make the innocent die with the guilty, so that the innocent and the guilty would be treated alike.

(Technical note for the lawyers: Yes, I realize that Bioshock may have fallen under the savings clause in the statute as being a game with serious artistic or literary value, but for the problems with that, see Justice Alito’s concurrence.)

Articles by Robert T. Miller

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