Justice Alito Knows Obscenity When He Plays It

It won't surprise long-time readers to learn that I approve of Justice Scalia's majority opinion in Brown v. Entertainment Merchant's Association, which struck down California's ban on the sale of violent videogames to minors.  The opinion is more or less mandated by United States v. Stevens, another case we cheered.

So I won't dwell (other than to applaud it briefly) on the majority's holding that minors do have First Amendment rights, nor on the cynicism of California's attempt to end-run the First Amendment by claiming that all speech may be regulated in the name of protecting children.

I want to dwell on the concurring opinion of Justice Samuel Alito, which shows the danger posed by statutes such as California's Violent Videogame Act, and of judges who believe their opinions as art critics ought to be the law of the land.  This passage:

It is certainly true, as the Court notes, that “ ‘[l]iterature, 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.’ ”  Ante, at 11 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)).  But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads thepassage in Crime and Punishment in which Raskolni- kov  kills the old pawn broker with an  axe.  See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950).  Compare that reader with a video-game player who creates an avatar that bears his own image; 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 hearsthe thud of the axe hitting her head and her cry of pain;who sees her split skull and feels the sensation of blood onhis face and hands.  For most people, the two experiences will not be the same.

illustrates the problem perfectly.

For those who haven't read it, spoilers follow:

Crime and Punishment is an allegorical novel of Raskolnikov's murder of an elderly woman and her sister, murders committed not for financial gain, out of passion or hatred, or any of the other usual reasons, but out of a nihilistic desire to prove himself above conventional norms of good and evil.  Raskolnikov (a name probably best translated as "the Dissenter") commits a perfect murder.  There are no witnesses to the crime.  He cannot be convicted for his crime unless he confesses to it.

That Raskolnikov does confess is because he is hounded, externally by one of the great literary detectives, Porfiry Petrovich (an inspiration for the late Peter Falk's Columbo), and internally by his own guilty conscience, a conscience he didn't know he had until he provoked it out of its slumber by committing a double murder.

Crime and Punishment is one of the great novels.  If you haven't read it, you should before some young nihilist decides to murder you for no good reason.

Justice Alito, whose literary tastes happily coincide with my own, concedes that Crime and Punishment is a great novel, even though it includes a graphic description of a double axe murder.  Where Justice Alito and I differ is in his opinion that under no circumstances could the depiction of a double axe murder, translated through the medium of a monitor and microprocessors, qualify as great art.  Or at least, Justice Alito believes that even if one could make an interactive artistic depiction of a double axe murder, the State would be justified in prohibiting minors from experiencing it.

In this, Justice Alito would have the support of one of the towering art critics of the 20th century: No less a light than Roger Ebert, the great film critic whose 21st century cultural relevance is his opinion that videogames can never be art:

I remain convinced that in principle, video games cannot be art. Perhaps it is foolish of me to say "never," because never, as Rick Wakeman informs us, is a long, long time. Let me just say that no video gamer now living will survive long enough to experience the medium as an art form.

To which I would echo dozens of others who've pointed out that neither Justice Alito, nor Roger Ebert, has ever played Planescape: Torment, Sid Meier's Alpha Centauri, or Portal 2.  And neither ever will.  It's a generational thing.

I mention Ebert not just because Alito could have relied upon him for his opinion that the State of California could have drafted a better violent videogame law that would have withstood constitutional scrutiny, but because he's a perfect illustration of the folly of technophobic judges who would impose their artistic values on posterity.

Get this.  Once upon a time, a young movie critic who now claims that videogames can never be art wrote this about a movie he most assuredly does consider to be art:

Censorship isn't the answer to something like this. Censorship is never the answer. For that matter, "Night of the Living Dead" was passed for general audiences by the Chicago Police Censor Board. Since it had no nudity in it, it was all right for kids, I guess. This is another example, and there have been a lot of them, of the incompetence and stupidity of the censorship system that Chicago stubbornly maintains under political patronage.

Censorship is not the answer. But I would be ashamed to make a civil libertarian argument defending the "right" of those little girls and boys to see a film which left a lot of them stunned with terror. In a case like this, I'd want to know what the parents were thinking of when they dumped the kids in front of the theater to see a film titled "Night of the Living Dead."

The Ebert of 1968 was writing in response to critics of an earlier generation, who felt that Night of the Living Dead, with its graphic cinematic violence, was an obscenity which should be banned to protect children and others who might be harmed by its sheer horror.  To bring things full circle, the most shocking and enduring image in Night of the Living Dead is not the simulated cannibalism: it's a depiction of a young girl slicing open her mother's head with a garden trowel.

Just like Raskolnikov.

Yet the Ebert of 1968 conceded, wisely, that censorship is not the answer. That the answer to parents who drop pre-teen kids off at a matinee of Night of the Living Dead is to ask them this simple question: What the hell were you thinking?

No doubt in twenty years, when I'm an old man like the Eberts and Alitos of today, my opinions will change.  Which is another way of saying that they'll stay exactly the same.  I'll demand censorship against the purveyors of "Neuro-Sims" like Auschwitz: The Reality, where players commit atrocities against one another in the privacy of their own nervous systems, while insisting that these could never be compared to recognized artistic classics like Left 4 Dead 2.

When that day comes, I'll have three things in common with Roger Ebert and Samuel Alito: I'll be wrong, I'll be old, and I'll be trying to impose my artistic tastes on a world that's passing me by.

Last 5 posts by Patrick Non-White


  1. Chris Berez says

    Excellent post, Patrick. I don't know what else there is to say, but you've nailed the point eloquently as always. It's both frightening and sad that what should be so obvious a point can elude so many people who should really know better.

  2. says

    Thanks for taking the artistic approach to this. Well done.

    If only there were a completed series of posts rebutting Ebert . . . .

  3. says

    I think Ebert recanted on video games not being art. Maybe it was just because he was sick of being hassled by the geeks.

    I'd say he was proven wrong even back in the days of Infocom's "Planetfall." With Floyd the Robot.