Birth of a Medium: Video games, art, and moral panic compares video games to early movies — and points out that early movies were not protected by the First Amendment:
For Henry Jenkins, a professor of media studies at MIT, the video game Grand Theft Auto III is a bit like Birth of a Nation, the 1915 film that cineastes praise for helping create the basic grammar of the movies and simultaneously damn for celebrating the Ku Klux Klan.“In terms of what it does for games as a medium, Grand Theft Auto III is an enormous step forward,” says Jenkins. “It represents a totally different model of how games can tell stories and what you can do in a gamespace. It happens to be yoked with some sophomoric images of violence that a lot of us wish weren’t there.”
Mary Lou Dickerson, a Seattle Democrat in the Washington legislature, sees only the violence. A bill she sponsored will ban stores from selling or renting violent video games to anyone under 17.
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Birth of a Nation faced censorship battles too. In those days, the courts held that the First Amendment didn’t apply to the movies, which were seen as a medium more for pie fights than for art. In other words, they were viewed the way video games are viewed today. In 2002 U.S. District Judge Stephen Limbaugh ruled that video games are not protected speech, a judgment that’s unlikely to be law 10 years from now but sums up the current conventional wisdom.