The Fight We Put Up: Videogames, Aged Beef, and Obscenity

I get nervous jaywalking in Washington D.C. As I was trying to navigate the streets between the Judiciary Square Metro Stop and the U.S. Supreme Court–a convoluted dual grid of square city blocks and diagonal gashes that cut across the city—I felt a fear that the last two years of life in New York have numbed. There is no such thing as jaywalking in New York.

Sometimes I walk between cars locked in a traffic jam or jog through a lull in the flow of taxis. Other times I walk across an empty side street against a red light, typing in a text message, looking up momentarily to make sure no new cars have turned the corner. In Washington D.C. this kind of independent movement feels a lot more like a crime.

Jaywalking as a punishable offense is a modern phenomenon. It doesn’t derive from public safety at all, but rather from the influence of auto industry lobbyists who wanted to clear streets of pedestrians and bicycles to create an atmosphere more welcoming to car travel, which would help sell more cars.

From that rotten seed, a police officer is entitled to fine you or me hundreds of dollars (the ticket can be  $200 in some places) for infringing on the right of automobiles to drive at high speeds in city centers. Since its implementation, we’ve accepted this constraint. Everyone breaks it, but few argue against its essence. It’s petty but it has a right to exist.

Earlier this year, I wrote about this phenomenon in describing the reluctance of men in their twenties to settle on a career and relationship as a way. It’s a reminder of how prejudicial the framing of a question can be, forcing both sides in a debate to forgo the logic of a truth presumed unassailable. And sometimes the simple act of crossing the street suddenly feels like a momentous transgression.

Writing about that reminded me again of that jittery moment scuttling through D.C. in the bright and cold November morning, the streets as cold and sterile as the sky. The Entertainment Software Association organized a demonstration to coincide with the Court’s decision to hear arguments for the State of California’s appeal to a district court’s ruling that declared unconstitutional a 2005 law to create a state-run videogame ratings board with the power to fine store owners for selling “violent” games to minors. The law hinges on a classification of games as “harmful material,” a legal term that would let California monitor the market by the same right that it restricts the sale and use of asbestos. It would classify games as a substantively harmful “thing” rather than a form of creative expression.

There were a lot of good reasons to not be in front of the Supreme Court that day. It was a national election day and the morning after the first official freeze warning of the winter. Still, there were close to 200 people waiting to get into the Supreme Court–an assortment of tourists, those interested in other cases being heard today, students on assignment, and a handful of locals interested in hearing the arguments over Leland Yee’s bill. In front of these cued citizens was a cluster of demonstrators, anchored by several ESA employees who passed out picket signs, t-shirts, and offered coffee and donuts for those braving the cold. Over the course of the morning there were between 15 and 30 people actually demonstrating.

I met a pair of friends who’d come to D.C. from Dover, Delaware to give support to the right of the videogame industry to sell expression free of state regulation. Greg, dressed in a Mario costume, is a tech at pharmaceutical company. He was with his friend Lisa, dressed in the green and black color scheme of the original Xbox, a Computer Science student in her senior year of university. They were childhood friends who bonded playing NES and Super NES games together. Their friendship had grown with the industry over the years and these days they play Guild Wars and Halo: Reach multiplayer together.

I also met Alex Koroknay-Palicz, Executive Director of the National Youth Rights Association, an advocacy group that had been planning the demonstration since this August independent of the ESA. The group believes the law isn’t only unconstitutional but an infringement of the still inadequate rights granted to citizens under 18. It’s is the NYRA’s stance that 16 year-old’s have free speech rights too, ones that are violated by Leland Yee’s law and by myriad other laws restricting what minors can and can’t consume on their own.

The NYRA is an advocate for lowering the voting age to 16 and lowering the legal drinking age to 18. The group also helps individual students whose rights of expression have been compromised when, for example, a student writes a controversial story in a school paper and is thrown off the staff or otherwise punished by the school.

Usiel Phoenix, a Board Member for NYRA, was the only person to give a speech during the demonstration. The 17 year-old spoke with a megaphone to the attendees, beginning with a confession of her lack of experience with games. “I’m not a gamer, I don’t have very good reflexes, and I probably won’t buy a videogame before I turn 18,” Phoenix told the demonstrators. She went on to describe legislative efforts to ban pinball in 40’s for fear it would damage the brains of youngsters and connected the aggressive venting of playing violent videogames to that of playing American football. Phoenix contended that if the law is upheld, young people would “find that their tongues have been cut out and held in trust [by the government].”

A little after 11AM a small crowd of people in suits and long overcoats came out of the Supreme Court and gathered on one side of the steps giving interviews to local reporters. ESA president Mike Gallagher and Leland Yee both spoke encouragingly about how their arguments had been received by the Justices. Demonstrators weren’t allowed to climb the marble steps of the Court to hear what was being said so they instead traded rumors about what had happened from a few people who’d been in the audience.

One of the sad threads in the hearing came when Justice John Roberts asked why the government has the authority to oversee sexually obscene content but has no stance on violence (in 1968’s  Ginsberg v. New York ruling that deemed “girlie” magazines could be harmful to children even if they weren’t technically obscene). Like jaywalking, the freedom to view one another’s bodies without moral imposition from any outside standard remains compromised–something that has been irrationally rationalized by modern Americans who gasp at the appearance of a woman’s nipple in public. We can look at our own genitals willy nilly in the toilet, but to stare at another person’s reproductive organs is to invite mental decay–at least for those under 18.

Walking with all the videogame fans and their pithy picket signs didn’t feel like a fight to defend the medium of digital interaction but a continuing cultural clash in which our freedom of expression has already been impoverished. Even if the Court declares the Yee law unconstitutional, we will still live in a time where an act of physical love between two people cannot be shown in a videogame and secure certification from a major console manufacturer. A victory for the ECA wouldn’t be a victory for free expression as much as it would be a momentary rebuff of a long-running attempt to sanitize human creativity, a war in which the Leland Yee’s of the world still have the upper hand.

As I started walking back towards Chinatown I spoke briefly to one last videogame fan who asked me where I’d come from. I told him New York and we both complained for a few minutes about how expensive the city is. “I heard cigarettes cost $10 there,” he told me. They do indeed. The city and state have imposed a punitive tax on tobacco in excess of 80% (what a diseased culture is it when we call punishment a “luxury tax”?). He told me about a recent law that I hadn’t heard about, one that curbed his cigarette habit entirely.

In 2007 a new spate of state laws were passed requiring cigarettes to be made with a chemical that limited how long they burn, lessening the dangers of wild fire and old ladies falling asleep with a lit cigarette in hand only to wake up in burning houses. The solution mandates a chemical compound used to make carpet glue be mixed with all cigarette tobacco to ensure cigarettes burn out more quickly. To prevent costly but anomalous disasters we’ve mandated everyone interested in a nicotine high smoke carpet glue.

To preserve the mental health and, as Chief Justice Roberts put it, “moral development” of children aged 2 to 18 we’ve made it illegal for them to see sex organs other than their own. Across the street from the Capitol Building is Capital Grille, a steakhouse renowned for political deal making in a dank cave of crimson and crushed velvet. I walked past it and saw a room filled with rotting meat presented proudly in a window. If it becomes illegal for a 16 year-old to kill a polygon puppet will it also become illegal for them to kill sheep and cows on farms across America? If pretending to hurt someone in a digital simulacrum truly causes violence, does actually killing another living creature make it easier for a young mind to act out violently against her friends and neighbors?

I wandered back to a Chinatown coffee shop where I wrote this, sitting next to a woman rocking back and forth in her chair and lowing like a cow. I am not afraid of this world where people trade ten hours of minimum-wage labor for a piece of rotten meat, where the mentally unstable walk beside us. It’s a world that’s already made us flinch in fear too much. Let us not flinch again. Or else remember those old muscles left clenched so long we’ve forgotten they can be loosened.

*Arnold Scwarzeneger et al vs. the Entertainment Merchants Association

Ginsberg v. New York

Why 25 Year-Old Men Won’t Marry You; or the Invention of Jaywalking

Are the New FSC Fire-Safe Cigarettes Making Smokers Sicker Than Ever


3 thoughts on “The Fight We Put Up: Videogames, Aged Beef, and Obscenity

  1. Good article but people who jaywalk cause accidents and more gasoline to be consumed by trucks and cars starting and stopping frequently. You make the connection.

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