U.S. Military’s Ban of ‘Medal of Honor’ Is An Unconstitional Restriction of Speech

The new Medal of Honor, an upcoming video game scheduled for release in October, will not be sold on U.S. military bases due to objections over the game’s content, specifically the “well-documented reports of depictions of Taliban fighters engaging American troops.”

The commanding general of the Army and Air Force Exchange Services explained the policy as follows:

“Out of respect to those we serve, we will not be stocking this game…. We regret any inconvenience this may cause authorized shoppers, but are optimistic that they will understand the sensitivity to the life and death scenarios this product presents as entertainment. As a military command with a retail mission, we serve a very unique customer base that has, or possibly will, witness combat in real life.”

Of course, there are plenty of other violent war-based FPS games available through the AAFES. It appears that the military’s ban on video games in which you play the role of the “bad guy” is limited to incidences in which you are playing a bad guy that is killing American troops. As noted by GamePolitics, “while Medal of Honor was pulled because players could assume the role of Taliban fighters, as of the time of this article, it was still possible to purchase Call of Duty: Modern Warfare 2 from AAFES stores, which featured a mission in which the player acts as a terrorist, shooting civilians in a Russian airport.”

This seems like a clear example of the government implementing a content-based restriction on speech. Under the First Amendment, such content-based restrictions of speech must be ‘narrowly tailored to serve a compelling state interest.’ Restrictions that are also viewpoint-based get a higher level of scrutiny yet. The AAFES’ refusal to sell Medal of Honor on military bases is a content-based restriction and, I’d argue, also a viewpoint-based one, particularly given the manner in which Medal of Honor has been singled out.

True, the military often gets some leeway when it comes to Constitutional restrictions, particularly when “national security” is invoked. But as held by a district court earlier this year in Nieto v. Flatau , “[w]hile military officials are entitled to great deference in restricting speech to further the military’s needs, they may not do so in a manner that discriminates against a particular point of view.” Additionally, any argument that this is a restriction of “commercial speech” would almost certainly fail. This is a refusal to sell a piece of media because of what it portrays — in that regard, restrictions based on a video game’s content should be evaluated in exactly the same manner as restrictions based on a book’s content.

And the ban on Medal of Honor doesn’t even come close to passing the degree of scrutiny required for such restrictions. “[S]ensitivity to the life and death scenarios this product presents as entertainment” is not a compelling state interest.


Plants vs. Zombies vs. Michael Jackson’s Estate

Plants vs. Zombies, an addictive game that is premised upon just what the title would suggest, features a character called the “Dancing Zombie.” Although fairly obscure in that the face is just a regular zombie-face, the style of dress and dancing of the zombie pretty strongly suggests that the character is intended to be a reference to Michael Jackson. (For the record, the Dancing Zombie pre-dates Jackson’s death, and is a reference to Thriller rather than tasteless commentary on his demise.) Dancing Zombie basically does a zombie waltz to attack your plants, and then spawns four Undead Dancing Minions, back-up zombie dancers from the set of Thriller who join in the fight. The in-game bio of the Dancing Zombie also strongly hints that the connection is deliberate:

Turns out Michael Jackson’s estate got wind of the game, and sent an objection to Popcap disputing their right to feature the Dancing Zombie character. Rather than engage in litigation against a very well-funded foe, Popcap broke down and agreed to replace Dancing Zombie with “Disco Zombie”:

The Estate of Michael Jackson objected to our use of the ‘dancing zombie’ in PLANTS vs. ZOMBIES based on its view that the zombie too closely resembled Michael Jackson. After receiving this objection, PopCap made a business decision to retire the original ‘dancing zombie’ and replace it with a different ‘dancing zombie’ character for future builds of PLANTS vs.ZOMBIES on all platforms. The phase-out and replacement process is underway.

Some quick research failed to turn up what exactly the Michael Jackson Estate’s “objection” was, but presumably it was some variation an alleged violation of Right of Publicity. Right of Publicity is a sort of hybrid version of unfair competition and/or misappropriation, although it is distinct from other forms of IP law, and is administered by the states rather than at the federal level. However, thanks to the First Amendment, the right of publicity has several exceptions, generally thrown under the catch-all category of “newsworthiness.” One of these exceptions is that there is no tort under right of publicity for a depiction of an individual for “entertainment and amusement concerning interesting aspects of an individual’s identity.”

The Dancing Zombie character might seem to fall under this category, but the Newsworthiness Exception also requires a reasonable relationship between the identity of the identical depicted and the subject matter of the story. Although, theoretically, Michael Jackson’s death (and the speculation of his life as a member of the undead…) might be grounds for finding the necessary “reasonable relationship,” it’s clear the Dancing Zombie was simply a Thriller spoof. And although some states, like New York, do not recognize a cause of action for post-mortem right of publicity, many states do, and Plants vs. Zombies has been released nationwide.

Of course, the Michael Jackson Estate’s complaint also raises the question of how to separate the persona of a celebrity from the persona of the characters they play. Plants vs. Zombies can very strongly be construed to be a likeness not of Michael Jackson, but rather of the character he plays in the Thriller music video. Although in Hoffman v. Capital Cities/ABC, Inc. Dustin Hoffman successfully argued a claim for right of publicity based upon a magazine’s alteration of his character Tootsie, that incident actually involved a photographic depiction of Hoffman as the character. In contrast, the Plants vs. Zombies character doesn’t even bear the slightest physical likeness to MJ — but it is an iconic reference to the Thriller character he played.

Long story short, I think Popcap Games could’ve won this case, although it is by no means guaranteed, and it would be a complex question of law that would take quite a bit of time and legal fees to untangle. So it is no surprise that Popcap backed down and Dancing Zombie was axed, but I’m a bit disappointed in the result. This would have been a great test case for the development (or curtailing) of Right of Publicity law, including the issue of how much protection celebrities have against unauthorized depictions not of themselves, but of the personas they have portrayed.


A Mosque in Manhattan

The 9/11 terrorists did not carry out a strategic assault aimed at weakening America’s military capabilites, but instead made an attack on the abstract concept of “Americaness” itself. The Twin Towers were the chosen target not because the World Trade Center was literally or factually involved in the United State’s perceived transgressions, but because they were an iconic symbol of America as a whole.

To the terrorists, it was irrelevant that the towers were full of people who were just going about their daily lives, 99.9% of whom did not have the slightest thing to do with America’s involvement in the Middle East beyond the fact they mostly happened to share a nationality with those who were.

I think that’s what kills me the most about the absurd sturm und drang that has sprung up around the construction of the so-called “Ground Zero Mosque.” Ignoring the most absurd parts of the debate — (1) The Muslim center is not actually in the Ground Zero area, but is several blocks away, and (2) Hello, anyone remember the First Amendment? — it’s the way that the anti-Mosque faction has adopted the same narrow mindset as the terrorist groups that is the most bothersome. For both groups, the thinking goes something like this:

The Twin Towers were a prominent symbol of the idea of America; certain American initiatives abroad were wrongful interferences with the affairs of other nations or were perceived as such by radical terrorist groups; ergo, the Twin Towers should be destroyed. A mosque is a prominent symbol of Islam; certain Islamic groups carried out horrific attacks on the Twin Towers; ergo, mosques are prohibited from ever existing in lower Manhattan.

The logic, or rather lack thereof, is the same in both cases.

That prominent American figures have bought into this political synecdochism is embarrassing and wrong-headed, and is costing us a rather excellent opportunity to show the world who the better man is. Americans have a Constitutional right to build a Mosque wherever construction of a similar structure would be permitted, but this goes beyond basic legal rights; the idea that the Cordoba House is to be punished merely because it happens to have the same descriptive label — “Muslim” — as some people who once did something bad to the U.S. is a fundamentally un-American belief. In contrast, I cannot imagine a better symbol for the American ideal than that of a Mosque, quietly co-existing with its neighbors, close to where the Twin Towers once stood.


Arizona’s Ban on Ethnic Studies Doesn’t Actually Ban Anything

When I first heard talk about Arizona’s HB 2281 — a.k.a. the anti-ethnic studies bill — I couldn’t decide if the law banned a majority of all social science classes, or if it banned nothing at all.

After getting a chance to read the bill’s text, however, I think it’s clear that the answer is almost certainly the latter. The law is too vaguely written for it to be anything other than a disorganized attempt at populist rabble-rousing, resulting in a bill that lacks any teeth and has no actual legal effect.

But saying that the bill has no real effect is not the same as saying that the bill is harmless. Chicken Little laws are not something to be encouraged, particularly where they invoke racial bogeymans that do not exist outside of legislature’s minds.

Look, no one involved in passing HB 2281 is making a secret of what this bill is really trying to prohibit: a hypothetical high school class intended for Hispanic students which tells them to blame their problems on the people whom are euphemistically referred to today as “Real Americans.” That such a class does not actually exist is, apparently, an unimportant consideration.

Tom Horne, the bill’s champion, is quite open about the fact that he is specifically attacking Latino studies courses. Although the Tuscon school district also offers courses in African-American studies, Native American studies and Pan-Asian studies, Horne claims he is not (yet) trying to get rid of those — Horne says that he’s studying those classes now to see whether they can stay, but that he “felt he [already] knew enough about Mexican-American studies” courses to advocate for their elimination. (As an Agnes Scott grad, I suppose I’ll just be grateful he hasn’t yet decided to target women’s studies.)

Some people have argued there is an inequity in the fact that Arizona offers all these ethnic studies courses, and yet doesn’t offer “European-American studies.” The reason that class doesn’t exist, of course, isn’t because of some anti-European-American sentiment, but because in the context of American school curriculums today, a European-American course simply wouldn’t have any academic value; a majority of humanities courses are already approached from a predominantly European-American perspective, so there is nothing new to be gained from magnifying that focus even more.

On the other hand, there are plenty of universities overseas that offer American studies classes, a course offering that is completely appropriate given that “American culture” is not the predominant theme of the rest of those universities’ curriculums. I’m sure Tom Horne or other supporters of the Arizona bill don’t find it objectionable that foreign schools offer courses in American studies, so why is it objectionable to offer studies of foreign cultures here in States?

The ethnic studies courses in Arizona come in a variety of forms — there are offerings in history, sociology, and literature. As with all humanities or arts courses, these classes have selected a particular narrow segment of human civilization for special scrutiny. The usual theme in ethnic studies courses is a focus on a given subset of the population with common traits and historical backgrounds, be it a race, a nationality, or a culture. The courses then pick out relevant people, events, or books related to that category, which the students are then expected to learn about, discuss, and then do typical high school class tasks such as “analyze the unifying themes” or “identify similarities between the authors.” It’s not exactly rocket science, no, but it is a useful academic enterprise.

Selecting “Latin American literature” as the lens through which the art of writing will be examined is no more or less legitimate than selecting “modern literature” or “Middle English literature” or “Shakespeare.” Selecting “African-American history” as the lens through which some segment of American history is to be examined is no more or less legitimate than selecting “history of American cuisine” or “history of the women’s movement” or “history of the Oregon Trail.” Ethnic studies classes simply are not different from other humanities courses in any manner which could create a legitimate government interest in banning them without banning all other humanities courses to boot.

Luckily, however, the Arizona bill doesn’t actually ban anything at all. Ethnic studies courses are not in jeopardy in Arizona, or at least they aren’t threatened by HB 2281.

Let’s take a look at the text. The law states in its Declaration of Policy that:

The legislature finds and declares that public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people.

Ignoring the gratuitous use of political buzzwords, this isn’t too objectionable. Valuing individuals is good. Hatred is bad. Courses that teach the opposite don’t actually exist, but sure, why not, let’s prohibit them, just for funsies.

After the O&P, we get to the actual prohibitions of the bill:

A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government;

Again, there is nothing particularly objectionable about this law, save for the fact it is tilting at windmills. Advocating the overthrow of the government already puts you on rather shaky First Amendment grounds, not to mention that First Amendment rights in public schools already can be restricted based upon legitimate pedagogical concerns — and those who fund public school systems can legitimately object to teaching that they should be overthrown by coup — so I can’t say I really disagree with this clause. But it doesn’t actually do anything, because no course in Arizona, or in all of the U.S., actually promotes such a thing.

Just to be sure, however, I did go look for evidence of a case where a public school was advocating for the overthrow of the U.S. government. The closest I could find on all the interwebs was this video here. This video features a dude who is a teacher who is speaking on some steps somewhere, and he apparently has a crush on Che Guevara. However, he is speaking at night, so he is obviously not teaching public school course of any sort. Whether or not you believe that people who share the dude’s views on Che Guevara should be allowed to be public school teachers, this law would do nothing to address the issue either way.

2. Promote resentment toward a race or class of people;

I would love to see a court try to handle this section of the ethnic studies bill. How on earth do you ban middle and high school courses that “promote resentment?” That’s what middle schoolers and high schoolers do. They are essentially jackals that have acquired the rudimentary elements of speech; they spend their days resenting stuff and hating stuff, no matter what courses they are in. Gym makes them resent gym teachers and peers that are more athletic than they are. Calculus makes them resent Newton. English lit makes them resent the fact that Chaucer couldn’t just speak normal English like everyone else does. It can’t be helped.

On a more serious note: how do you teach WWII without teaching students to resent or hate those who carried out the Holocaust? How do you teach the Civil War without promoting “resentment or hate” for the ideology that believed one human could own another? How do you teach about the suffrage movement without promoting “resentment” for those who believed two X chromosomes made you unqualified to vote?

Unless Tom Horne has the balls to come out and actually re-phrase the law so that it specifically prohibits teaching student about anything bad that any white Europeans or Americans may have ever done to any Native American or Latin American, the Arizona statute is meaningless. This legislation cannot actually address the “problems” its framers are claiming its supposed to fix, or at least the bill cannot do so without simultaneously prohibiting the teaching of most of global history.

3. Are designed primarily for pupils of a particular ethnic group.

The Federal Constitution already prohibits any real problem that this portion of the law is aimed at, so it’s more or less redundant. Once again, I don’t agree that the problem is real, but to whatever extent this is an actual issue, I’m fine with the Arizona legislature prohibiting it. The greatest value to be had from any ethnic studies course is the same as it for any other humanities course — that is, exposing students to ideas and knowledge they had not encountered to before. An ethnic studies course designed only for students already of that ethnicity is needlessly crippling itself.

4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

This portion of the law would target subjects its framers never intended to. Any sort of pro-America message could conceivably be prohibited — because, after all, nationalism does not advocate the individualism of every special snowflake, but advocates a unity based upon shared passports.

Not to mention, teaching “Asian studies” does not advocate “Asian solidarity” any more than “Philosophy of the Enlightenment” might advocate “Rationalist solidarity.”

But all of the above aside, any potential bite that the prohibitions in the Arizona law may have had is completely eviscerated by parts E & F of the bill:

e. This section shall not be construed to restrict or prohibit:

1. Courses or classes for Native American pupils that are required to comply with federal law.
2. The grouping of pupils according to academic performance, including capability in the English language, that may result in a disparate impact by ethnicity.
3. Courses or classes that include the history of any ethnic group and that are open to all students, unless the course or class violates subsection a.
4. Courses or classes that include the discussion of controversial aspects of history.

f. Nothing in this section shall be construed to restrict or prohibit the instruction of the Holocaust, any other instance of genocide, or the historical oppression of a particular group of people based on ethnicity, race, or class.

Pay special attention to e(4) and f. Because e(4) does not contain the “unless the course or class violates subsection a” language which is specifically enumerated in e(3), it very likely that e(4) would be interpreted to offer a blanket exemption for courses which include controversial aspects of history. As if that wasn’t clear enough, section f goes on to explicitly exempt from the prohibition the study of the Holocaust or any other oppression of a particular class of people. That pretty much gives a pass to every ethnic studies course in Arizona that doesn’t happen to be calling for a revolution. Which is, well, all of them.