A Rubric of Sense

Call of Duty: Modern Warfare 3

The most assailable portion of the majority opinion in Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011), is the rebuttal of the dissenting opinion, which focuses on interactivity. The dissent posed that video games are distinguishable from other mediums because video games offer a higher level of interactivity, hence realism. As such, the dissent argued, previous freedom-of-speech cases concerning other mediums do not control the outcome of Brown.

In rebuttal, the majority likened video games to literature, and quoted Judge Posner of the Seventh Circuit stating that all literature is interactive, “[T]he better it is, the more interactive. Literature 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.”


However, considering the yet unrealized promise of virtual reality, the majority opinion is not future-proof. Consider three scenarios that simulate a soldier in a war: 

Medal of Honor: Vanguard

1) a person reading a book written as if the reader is the soldier; 

2) a person in front of a screen, controller in hand, playing a first-person shooter video game as if she is the soldier; and 

3) a person in a virtual reality machine of science fiction acting as if she is the soldier. 

The majority argued the middle scenario is more like the former, while the dissent argued the middle is more like the latter. 

Just as science fiction soon gives way to science fact, the middle scenario will give way to the latter. Consequently, the distance between literature and video games on the spectrum of interactivity will grow. Most likely, courts will be the arbiter that distinguishes points on the spectrum, and courts will need to provide a stable framework to judge interactivity. 

The best way to judge interactivity is by sense. More interactive mediums will simulate more senses, and at a better quality, than less interactive mediums. A court's consideration of the sense scale should be guided by our own experience as a species, giving priority to sight, touch, and sound over smell and taste. Considering the examples above:

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1) This type of interactivity involves the “simulation” of every sense, but at such a low level that it may not be categorized as simulation at all. For example, the text of the book will describe what the soldier saw, touched, heard, smelled, and tasted. However, the reader is required to draw upon her own experiences to translate the text into simulations of each sense. Better terminology may be that the simulation is not direct, but indirect. That the reader is seeing the text, touching the book, hearing the pages turn, etc. is of no moment because those experiences are not part of simulating the soldier.

2) This type of interactivity involves direct but partial simulation of sight and direct simulation of sound. The simulation of sight is partial because the player does not see the screen in her peripheral vision. This scenario does not involve the simulation of touch because the player is not emulating the movement of the soldier nor experiencing what the soldier touches. That the player is touching the controller is of no moment because that experience is not part of simulating the soldier. 

3) This type of interactivity involves direct simulation of every sense. The only difference between this scenario and the actual soldier in the war is the player’s cognitive certainty of playing a game. Such certainty will cause failure in eliciting honest reactions to the simulation in some players. Circularly, this difference appears similar to a poorly written book failing to draw in the reader via failure to elicit honest reactions from the reader such as identifying with the characters, experiencing joy and suffering along with the characters, and all the other reactions mentioned by Judge Posner. Will such similarity be enough to support the majority’s opinion in Brown as applied to virtual reality? No because while virtual reality may illustrate the way the most imaginative are drawn into literature, laws are interpreted as applied to the most average. Among the most average, more will be drawn into virtual reality than literature.

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Armed with a rubric of sense, courts will be prepared for the more stimulating simulation to come.