Real Speech in Virtual Worlds
What a character named Adolf Critler means for the future of video games and the First Amendment
Poor old Adolf Critler. All he wanted to do was bum around Tyria for a while, hang out with his friends, and seek and destroy the armies of Zhaitan, the undead dragon. Instead, he was ejected from the game. And all because of his name.
Adolf, thankfully, isn’t a real person. He’s a character an anonymous player has created in Guild Wars 2, the immensely popular massively multiplayer online role playing game launched this week. And because the character’s name bares a striking resemblance to that of a certain genocidal Fuhrer, the game’s developers, ArenaNet, decided to give Critler the boot. Determined to provide the hordes of players who flocked to the game—it sold a million copies before it was even released—with good, clean fun, ArenaNet cracked down not only on punchy punsters (much to the chagrin of the player who named his character Verybigballsackk), but also on Holocaust jokers, N-word aficionados, chauvinist pigs, and anyone else whose speech was deemed offensive.
“To keep Guild Wars 2 a pleasant place to be,” ArenaNet said in a statement, “we take action against racist names, hate speech, and other unacceptable behavior. We have suspended some accounts involved in the use of offensive character names or inappropriate chat.”
Just what, however, is offensive and inappropriate? And who gets to decide? These are far from trivial questions. With nearly 50 million Americans now playing massively multiplayer online games, or MMOs, and spending billions of dollars doing so, virtual worlds are becoming a very real part of our culture and commerce. Therefore, whether we allow Hitler fanciers to roam free in Tyria, Guild Wars’ fictional world, matters just as much as whether we permit them to march in Skokie, Ill.
Like so many complex legal questions, this one, too, depends on what your definition of is is. Some believe that a virtual world, being an entertainment product created by a private corporation, hosted on privately owned servers, and guarded by a pay wall and specific end-user license agreements, is just like any other service offered by any other online provider and therefore not subject to the Constitution’s protection. Setting an early precedent for this approach, CompuServe, then the largest provider of Internet services in America, sued a company named Cyber Promotions Inc., in 1997 for sending unsolicited electronic advertising, or spam, to its subscribers. Cyber Promotions claimed free-speech protection; CompuServe argued it was private property and won. The U.S. District Court for the Eastern District of Pennsylvania found CompuServe’s proprietary servers to be akin to chattel, or movable personal property, and barred Cyber Promotions from “causing, authorizing, participating in, or assisting others” in sending spam over CompuServe’s network. You could argue, as many do, that there’s no real difference between providing users with email services and providing them with a digitally rendered world where they can chat with others and embark on missions. It’s all about services, not speech.
But even if virtual worlds are purely commercial enterprises, that does not allow their designers the ability to suppress speech at will. In a series of decisions over the past decades, the Supreme Court has ruled that commercial spaces—like shopping malls—may still be considered to be quasi-municipal corporations, which means they are entities that run like de facto small governments and are therefore not allowed to suppress free speech.
The commercial aspect, however, is only one side of the story. If you’ve ever spent a sleepless night doing battle with orcs or gathering the resources you need to help you defeat the insect-like aliens that are swarming your space colony, you may not be inclined to agree that the intensely emotional experience you just had—an experience that, for the most part, involves constant communication with other human beings—was simply a service you had purchased. Having invested much money and many hours in the game, players feel entitled to their say. And some noted legal scholars agree.
Jack Balkin, Yale law professor and the director of the university’s Information Society Project, a research center dedicated to examining the legal aspects of nascent technologies, wrote one of the first essays on the question of free speech in virtual worlds. Published in 2004, it offers a concrete analysis of the rights of both designers and players before suggesting that it is a collaboration between these two groups that makes virtual worlds run. In that sense, Balkin argues, virtual worlds are like improv, a pursuit whose basic tenets are defined but whose point is to leave room for individual creativity and ingenuity.
“Improvisational theater,” Balkin wrote, “involves both constraint and freedom; it involves participation and contingency, and it is generally recognized to be a medium that enjoys First Amendment protection. Like virtual worlds, the work of an improvisatory theater troupe changes over time through the creative participation of the players, so that even if a theatrical piece starts in one way, it often ends up quite differently after the players have worked on it for some time.” And just as a theater director wouldn’t force an actor off stage for improvising a character’s line, so the designers of virtual worlds oughtn’t be allowed to have complete control over all speech uttered by their “actors”—the players.
None of this, alas, is of any use to Adolf Critler. For now, virtual worlds are still enough of a new phenomenon for scholars to leisurely debate the merits of this theory or that. Soon, however, it is likely that the courts will be called upon to adjudicate on all manners of behavior in online environments, free speech first and foremost. What they find will affect the lives of millions; Jews, who’ve helped lead much of the debate about speech in America for at least a century, would do well to start paying attention now.
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