A review of Highway Blossoms: Remastered (PC)

It’s back to the visual novels. And it’s also back to the itch.io bundle, and specifically last year’s racial justice donation bundle, not to be confused with the recently ended Palestine relief one I talked up last post (which I will be getting to in turn, because there are a few interesting games in there as well. Also thanks to itch.io for that bundle again and to everyone for putting up over 900K for a great cause.)

But for now, here’s the 2016 kinetic novel Highway Blossoms, which I just got around to reading after a year of owning it. This is specifically the recently released remastered version, which adds in voice acting and probably a few other features I didn’t notice because I didn’t play the original. I’m not sure if the old version is even around for sale anymore, but it seems this is the definitive version anyway. (And some story spoilers, since this being a kinetic novel, there’s not much to talk about other than characters and story. But that might not be such an issue either way.)

Yeah I played in windowed mode, I admit it

Highway Blossoms tells the story of Amber (above, left), a young woman driving down a highway in the American Southwest in the RV she inherited from her recently deceased grandfather. As our protagonist drives along, she comes across a hitchhiker standing next to her car on the side of the highway, and against her better judgment she stops to help out. Said hitchhiker is Marina (right), another young woman looking for a lift from a stranger. Which is also against all good judgment and common sense, as Amber herself says — but we’ll soon learn that Marina is a bit lacking in the common sense department.

Amber decides to bring Marina along, afraid of what might happen to her if some seedy weirdo comes across her instead. And so their adventure brings, and also their romance, because Highway Blossoms is a yuri (i.e. lesbian) romance VN and this is our couple. That’s not really a spoiler, either: the game bills itself in exactly that way, and its promotional art makes it very obvious that these two will get together, so I don’t feel like dropping that fact here is a big deal when it says all this stuff on the cover basically.

Amber likes black coffee, Marina likes milkshakes. With this odd couple character dynamic plus the yuri tag on the game, you can see it coming from miles away.

There’s another major aspect to Highway Blossoms aside from the yuri romance, and that’s the travel guide one. This game takes place entirely in the American Southwest region, starting in New Mexico, running through Arizona, Utah, and Nevada, and ending in inland California. What starts as a simple lift turns into an extended trip through an entire quarter of the United States when Amber learns that Marina is out on her own searching for a legendary treasure of gold scattered and buried in parts by a 19th century prospector with clues left about their hiding places.

Amber is a naturally skeptical type, and the fact that this prospector’s journal is being sold at gas stations and corner stores all over the place and has sparked a new “gold rush” to find his treasure cements her opinion that it’s all a scam. However, Marina seems dead set on finding these stashes of gold, so Amber unaccountably (even to her, at least at first) agrees to help her.

It also helps that Amber has an encyclopedic knowledge of the Southwest and the ability to decipher vague hints based on its geography despite still only being 19. Not that a 19 year-old can’t be that smart, but I feel like life length/experience should factor in a bit more, especially when so many people are on the hunt.

This gold rush is the excuse for Amber and Marina’s tour through this part of the country, and we get to visit some big natural landmarks along with them, like Shiprock and Arches National Park, places where the prospector hints that his treasure was buried. And of course, a rivalry develops between Amber and Marina on one side and a team of treasure hunters they keep running into on the other, spurring them on to try to find the gold before the other group cleans them out.

The rivalry is really between Amber and this constantly half-naked lady Mariah; anime hair man and Mariah’s little sister who are along for the ride are actually pretty nice. And nice crack on ska there. Why the hate for ska anyway? It’s not that bad.

Finally, between these points, we get a nice dose of what people call “Americana”1 — it’s a term I always found strange, since it only seems to refer to a narrow slice of what life in America is like, but here we’re talking about country/western folk sort of music, 24-hour roadside diners serving heart attack food, and weird man-made tourist attractions like the tallest thermometer in the world. All the stuff you find on Route 66, even though that famous US highway isn’t mentioned at all in Highway Blossoms unless I missed something. But since Amber and Marina are bouncing between different states constantly, it makes sense that they’d have to go off the beaten path a bit more.

I forget exactly what this spot was, but it must be another important natural landmark.

Before going into what I liked and didn’t like about Highway Blossoms, I want to acknowledge something that I very probably got wrong last year when I wrote about visual novels here in the West — they seem to be more popular here than I gave them credit for. I was thinking more about mainstream popularity then, which I feel VNs still don’t really have here, but my perspective was too narrow to see other niches this medium has gotten into, especially with all the otome games out there.

Original English-language visual novels (OELVNs as they’re commonly called) still look like a niche thing to me, but I might still be out of touch in that area — Highway Blossoms is only the third one I’ve played in my life after Doki Doki Literature Club two years ago and Katawa Shoujo (or part of it anyway)2 last year. But it also feels like a first for me in the sense that it’s an entirely American VN with regard to its setting and characters. I also get the impression that the writers at the indie developer Studio Élan are American, or at least that they’ve been around the Southwest and are very familiar with the cultures down there.

There’s still a lot of very obvious influence from Japanese VNs in certain aspects like the character design (which I’m naturally not complaining about — I am still a damn weeb after all, and Amber and Marina and a few of the game’s other characters look pretty fine) but this is otherwise very much an American work, and as an American who’s somewhat into the visual novel medium, that’s nice to see.

In general, Highway Blossoms feels pretty polished, with full voice-acting, original music that mostly fits that Southwest country/western folkish feel, and some pretty nice CGs. Including a few in its 18+ scenes near the end of the story — the base game is all-ages, but there’s an 18+ patch you can download and apply from the Steam page, even if you got Highway Blossoms through itch.io like I did. It only adds maybe ten minutes to this ~5-6 hour game, but to the publisher’s credit, the patch is free.

The only real complaint I have with the game’s presentation is that the otherwise nice-looking character portraits looked a bit crusty in their outlines when set against the backgrounds, but then maybe it was an issue on my end somehow. I don’t know enough about the technical aspects of putting a VN together to say. It’s not a big annoyance for me either way, but just something I noticed.

Now for the writing, which is certainly the most important aspect of this game considering that there’s no gameplay here to speak of. And this is where I have a few more substantive criticisms to make, one of which has to do with the central relationship between Amber and Marina.

If you’ve read or played or watched any similar romances, it’s not much of a surprise: Amber is the serious one, somewhat bitter for her age and carrying around an emotional burden she’s trying to deal with (the recent death of her grandfather, the one who raised her in place of her deadbeat parents and the only person in her life she really cared for) and Marina is the free spirit she comes across by chance, the one who shows her a new way to think about life and who helps her resolve that emotional burden. The road is a bit bumpy; there are a few arguments and one big fight near the end between them, but the two are finally able to come together and realize and express their love for each other. There’s a happy ending as the pair set aside uncertainties over their futures for the moment and embrace their love.

I’m not saying the above is even that unrealistic, but it does feel like a tired sort of story. Maybe I’m just a bitter fuck, but believe it or not, I actually can appreciate a good romance if it gives me something new and fresh to enjoy, and this doesn’t really. For all her impulsiveness and spontaneity, Marina might even be put in that dreaded “Manic Pixie Dream Girl” category that film critics created in the mid-2000s to describe such free spirits. See the 2004 film Garden State for a good example of that character type: the free spirit in this case being Natalie Portman, who pulls depressed guy and writer/director Zach Braff out of a slump with similar results.3

To be fair, though, I think Highway Blossoms avoids falling into that old trope too much, because Marina does have a backstory and a personality beyond “cute girl who loves life and doesn’t let things bother her etc.” She’s not nearly as out to lunch as a few of the other characters I’ve seen stuck into that category either — Marina’s actions seem to make sense to her, at least, without just coming from a place of pure whimsy or whatever the hell nonsense those other movies were trying to pull. The “Marina’s thoughts” feature helps a bit there — throughout the game, we hear Amber’s thoughts, but certain objects the pair collect are catalogued in a separate menu with Marina’s thoughts on them in the attached notes. It’s clear that though she does lack some common sense, Marina doesn’t deserve to be called a simple airhead. Even if she does a couple of profoundly stupid things in the course of the story that Amber ends up having to fix.

I found the romance a bit dull, but at least sort of believable.

The bigger problem is that as a kinetic novel without any player choice or interaction, the story is all Highway Blossoms has beyond its nice art and music, and there’s not much there for me to enjoy. The romance is nice enough, but nothing more, and all the treasure hunt and travel stuff feels like a reason for the romance to take place more than anything. Again, maybe I really am just an embittered type too far beyond that point of life to appreciate the game’s messages. Maybe this game simply wasn’t meant for me — the main characters in it are 19 and 18, both with their whole lives ahead of them, and while I was once like that, I’m now a professional chained to my desk with no real personal goals beyond “get a few hours of total escapism a day to put up with this shit”, all of which is entirely my fault.

So I’ll go for a complete, shameless cop-out and give the typical lawyer’s answer to the question of whether Highway Blossoms is a good visual novel: “it depends.”4 I feel now like I did when I was looking at Blend S, in fact, only instead of the feeling being “this is for me but might not be for you”, it’s “this isn’t for me but might be for you.” If all of the above really appeals to you, or if you’re the type who melts at romance, you might want to check the game out. I liked Highway Blossoms a hell of a lot better than I did Garden State, at least, if that gives you any point of reference. If it doesn’t, I’ll just say that while I didn’t exactly dislike this game, it did fall flat a bit for me.

Okay, not this part, though. There’s something about that “one character has to wear another’s clothes” thing, especially when the two are still just romantic interests. I don’t know. I’m not the only one, right?

Maybe Highway Blossoms does have some value as a Southwest travel guide, though. I’ve never been to that part of the country before, so I can’t say how well it captures the region and its natural beauty, cultures, and all that. But if it does so sufficiently, some of the states it features might consider officially adopting it as a tool to drive tourism — Japanese VNs do this sort of thing often enough, with Our World Is Ended for example set in Asakusa and even talking up particular restaurants.

Something to think about, at least. Though I don’t know how Utah would feel about using a lesbian-themed visual novel to promote itself. Maybe about as good as they would using a lesbian-themed visual novel to teach their schoolchildren Esperanto. There really are a lot of great potential uses to VNs, aren’t there? 𒀭

 

1 Of course, there’s also apple pie and baseball, as seen in this photo I found under “Americana” taken by someone at the USDA Agricultural Research Department. Those are somewhat more widespread in the US, but I’d say still partly outdated as a representation of what America is considering how far baseball has fallen against other sports like basketball, football, and NASCAR (and even soccer, which has been steadily rising in popularity here recently.)

Apple pie is still good, though. I’m more of a cake guy myself but I can appreciate it.

2 I have a load of very old notes on Katawa Shoujo and I still might write something about it here. The trouble is I don’t know if I should write about it if I’ve only gotten through two of its five routes, but then again it is a proper 30+ hour visual novel with branching decision paths and bad ends and all that. Maybe I’ll just finish the damn thing finally, since I’ve thoroughly liked what I’ve played of it so far (there’s your preliminary review of it at least.) In any case, there are more visual novel reviews to come as I plow through what I still have in my massive backlog.

3 I don’t remember their characters’ names, but these two were quite big back at the time: Braff was one of the main guys in the TV comedy Scrubs, and Portman was in quite a few other movies throughout the 90s/2000s, including the first run of bad Star Wars films. The only movies I saw Portman in that I actually liked were Heat and The Professional, the latter of which admittedly had some very weird vibes that may have been explained recently by what’s come out about director Luc Besson. I don’t know how well it holds up, but Jean Reno and Gary Oldman are both always good. But then there are those weird vibes again, so I don’t know. Maybe it’s worth a re-watch?

4 I don’t mean to say here that it always depends — I absolutely don’t subscribe to the view that the quality of all art is a subjective matter. I just feel this is one of those cases where the problem might be partly with where I am more than with the work itself.

On the use of public office to suppress the display and sale of artistic works

Weeks ago, I heard about a controversy in Australia having to do with the sale of certain manga in the Sydney branch of Kinokuniya, a Japanese bookstore chain with locations around the world. Last July, South Australian state legislator Connie Bonaros made a complaint regarding volumes sold there, including such titles as Eromanga-sensei, No Game No Life, Sword Art Online, and Inside Mari, on the grounds that they violated Australian law regulating certain types of sexual artistic depictions. The exchange of letters between Bonaros and Kinokuniya officer Keijiro Mori can be found in the link above, but the gist seems to be that Bonaros thought some of the anime-styled girls in works that include sexual content looked like minors and came to the conclusion that their sale in Australia constituted a violation of the law.

If we talk about how horrible this is and have it banned from stores, people will definitely stop reading it! That has always, always worked.

I feel bad for Australian manga and light novel readers who were into those series, and especially for fans of No Game No Life, a few volumes of which received an outright sale/importation ban. It’s worth mentioning that we’re not even talking about some hentai doujins and manga you might find in the seedier shops in Akihabara; most of the affected series are massively popular and none are pornographic as far as I understand. It also seems weird that a South Australian state legislator can have any say at all over what books can be sold in Sydney, which is located not in South Australia but in New South Wales. That sounds to me something like a Virginia state senator getting books removed from a New York bookstore, which would be unthinkable here in the US.

But I’m not an expert in Australian law. In fact, I don’t really know anything about it except that the Australian constitution doesn’t contain an explicit protection for freedom of speech or expression. Since Bonaros is an Australian lawyer and I’m an American one, I’ll defer to her understanding of her own country’s law. I just hope fans and other artists in Australia can find a way to gain a stronger voice in politics.

All that said, I think the victory won by Bonaros has to be examined more closely. It raises a question that’s relevant to every fan of anime, manga, video games, literature, and art in general living in any country on Earth. That is: how far should a public official be able to use the power and influence afforded by their office to suppress the display and sale of an artistic work? Because that is apparently what Bonaros did. No legislation seems to have been proposed; no evidence was brought forward to show that the contents of the listed works actually violated Australian law (or if it was raised, it wasn’t mentioned in the reports I found.) And there’s certainly been no solid evidence brought forward that said works have a harmful effect on their readers or on society in general. It seems that Bonaros simply saw some manga that rubbed her the wrong way, used her platform as a legislator to complain about it, and successfully pressured Kinokuniya into removing it.

I can’t pretend that this incident in Australia doesn’t affect fans of manga, anime, or related works here in the States either. Because Bonaros also requested a list of other countries in which Kinokuniya still sells No Game No Life and the other titles she objects to, presumably including its American branches, and pressured the company to ban their sale globally.1 As a result, it’s now undoubtedly an issue for us Americans as well. And since she’s made it an issue for us, let’s have a look at US law to see whether or how such an incident might play out here.

Unlike my last couple of posts on this general subject, this time around we’re specifically concerned with the First Amendment. Here’s the original text in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Pretty short considering how much has been said about it since it was ratified in 1791. And we’re only concerned here with the middle clause, and specifically with this statement: Congress shall make no lawabridging the freedom of speech.

It’s understood that artistic expression counts as “speech”, and this naturally includes manga (and visual novels, and drawings, etc.) However, that doesn’t mean these are all entirely safe from regulation. Congress has made laws abridging the freedom of speech since, but these were passed when the courts carved exceptions out of that guaranteed protection. An example of such an exception is found in the Supreme Court case Brandenburg v. Ohio2 (note: citations provided in the footnotes in case you want to look them up) in which the Court determined that the government could not regulate speech on the basis of violent or incendiary content unless it was 1) “directed to inciting or producing imminent lawless action,” and 2) “likely to incite or produce such action.”

So it’s unconstitutional to arrest someone for throwing out extremist political views, for example, unless they’re actually stirring up a group to do some immediate violence or lawbreaking. It’s a very limited restriction but an important one — essentially, the Court has said that the government shouldn’t have the power to restrict this kind of speech unless it’s about to cause actual harm.

Artistic expression has also been restricted in limited ways and on similar grounds. Certain kinds of expressions that involve causing harm to others, for example, are rightly recognized as falling outside of the First Amendment’s protection. When the artistic expression in question doesn’t involve such harm, however — for example, when actors are depicted being harmed through the use of effects and studio tricks, or the expression consists of drawing or sculpture or some similar form — the standard for regulating the expression is far higher. Even if an artistic expression seems revolting, as long as it’s not found to be obscene or otherwise outside the protection of the First Amendment, it can’t be banned or suppressed through government action.

And the obscenity standard set by the Supreme Court in Miller v. California is extremely difficult to meet. Attempts at getting around this test through other sorts of official action have usually failed, as in the case of Bery v. New York,3 in which the Second Circuit Court of Appeals struck down a government regulation requiring artists to be officially licensed to sell their work on public streets. Even if a regulation isn’t obviously intended to restrict freedom of expression, if it has that effect, it’s subject to the First Amendment and likely to be struck down in the same way.

However, let’s say that “official” government action isn’t being taken. What if, as in South Australia, some legislator stands up and simply talks about how bad some work of fiction is, how it’s degrading the morals of the people by its very existence, and how for those reasons Amazon should stop selling it? What if people petition Amazon on that basis and the company gives into public pressure and removes said work? In other words: can a public official legally use the power and influence of their office to skirt the First Amendment and have an artistic work suppressed without “making a law”?

Again, this is no hypothetical, because we’ve already seen it happen. I brought up several examples of such attempts at content-based regulation in another previous post. The most relevant here is the string of attacks on video games made by Congress in the early 90s, most famously against the Sega CD game Night Trap. Looking back, it seems strange that this FMV game was ever at the center of a controversy. Its contents are pretty tame, but some legislators spoke against it anyway, most notably former Senator Joe Lieberman, for containing gratuitous violence and lewdness. Following a congressional hearing in 1993 on the subject of video game violence (during which Lieberman admitted to never having actually played Night Trap) the game was pulled from distribution by major distributors and later pulled from the market altogether.

If it hadn’t been for that controversy, though, this game wouldn’t have gotten a rerelease/remaster on Steam, no way in hell.

The facts that the Sega CD was a marketing failure, and that by most accounts Night Trap was a lousy game, might have something to do with its pulling from distribution, but the influence of interest groups driven at least in part by public condemnation has to be considered. In my view, the use of a congressional hearing in this way taints the market and is an example of government overreach into the regulation of art. Lieberman’s view of Night Trap doesn’t seem very different from Bonaros’ view of No Game No Life and the rest of the manga on her list: both came to conclusions about the meanings and effects of the works seemingly without supporting evidence, and both ended up having an effect on the distribution of the work (in Bonaros’ case a much more direct and obvious effect, though.)

It seems this kind of government interference in art is hard to prevent even in the US, however; it’s happened so many times already (see also the Hays Code and the Parents Music Resource Center.) And there’s no reason to think it won’t happen again. At the moment, the US is going through a shitstorm for lack of a better term, or at least I can’t think of a better one to use, so people aren’t thinking too much about how music or video games are going to turn fans into degenerates or criminals. But that won’t last forever. One day when things are less chaotic, we’ll have another moral panic in which art is attacked as a way to avoid actually addressing societal problems. And since it doesn’t seem to be considered a violation of the First Amendment for politicians to use their influence to try to have works regulated or removed from sale, maybe the better question to ask at that point is: “Should they be allowed to do so?”

Let’s just do this again, why not.

Of course, my answer is “no.” The First Amendment’s guarantee of free expression loses some of its teeth when politicians are able to use the resources and influence of office to essentially get around it. Yet I don’t see a solution to that other than maintaining a culture of open and free expression. That’s a culture that has been under attack recently, especially with regard to anime, manga, and anime/manga-influenced games. We just have to remain vigilant as usual, calling out hypocrisy and scapegoating when we see it, and always in a civil but forceful manner.

I’ve lived in a country where the government had near-complete control over art and the press and where the dominant culture supported that control, and I can tell you it’s not fun. Many of the people who think they want that kind of power to be exerted against expression they don’t like here in the US might be in for an unpleasant surprise when they find works they like on the chopping block. But by then, if we ever get to the point where the First Amendment is so eroded, it will be too late to do anything about it.

So there’s my dire warning as usual. And as usual, I’m interested in other opinions. Do you have a different angle on these issues? Do you think Bonaros was right and justified in what she did? If you do, I don’t think we’ll find much common ground, but it’s still worth talking about. Maybe there were some important facts in that case that were glossed over or that I missed. Or maybe my own views on the issue as an American are considered weird in other countries. I know for a fact that’s the case, but that’s also part of why I came back here after all. 𒀭

1 Thankfully, Kinokuniya’s response to this request was: “In terms of our action globally, wherever our stores are situated we respect local law and culture, and make ordering decisions respectively and accordingly.” Which sounds like a diplomatic way of saying “mind your own damn business.”

2 395 US 444 (1969).

3 97 F.3d 689 (2d Cir. 1996), cert. denied, 117 S.Ct. 2408 (1997). There’s an interesting note about the case here (a note being an article written by a law student in an academic journal — I wrote a note myself, but it was a piece of shit and rightly didn’t get published.) A good read if you’re interested in the subject.

In defense of offensive content

Months ago, I wrote a post about obscenity law in the US and how anime, game, and similar material that some people would consider offensive or objectionable fit into that framework. However, there was a key question I left hanging back then that I’d like to address now: why protect art that many might find offensive? And in particular, why protect the creation and marketing of erotic and pornographic content?

I might also be writing this because Evenicle was one of the games I got during the lunar new year Steam sale

As I wrote before, this isn’t merely an academic question, because some people seem to believe they should be allowed to enforce their personal views about art by effectively regulating the expression of people they disagree with. You’d think that socially conservative fervor of the 80s and 90s had made a comeback for some of the puritanical screeds you’ll find on Twitter, Reddit, Facebook, and all the other big social media platforms. This attitude seems to be thriving now more than ever, in fact. See Sony’s changes to their content policies over the last year and self-censorship now on the part of even Japanese developers and publishers. I certainly can’t say how much, but at least some of this is likely a reaction to these agitators. Even honest, hardworking NSFW artists on Twitter have had to bear insults and attempts at shaming online, and for what? For exercising their rights to free expression. I know I’m a complete nobody who should probably be saying these ideas while standing on top of an actual soapbox in a public park, but I’ll be goddamned if I’m going to stop talking about these issues while things remain as they are. Hence this post, in which I’ll probably once again be preaching to the choir. But I welcome anyone who disagrees with me to read through my arguments and post a comment challenging them.

As before, I’ll be looking at this question partly from the legal perspective, with all the same disclaimers contained in my last post on the subject: none of this constitutes legal advice, it’s all probably nonsense, etc. etc. If you haven’t read that post, I’d recommend it anyway — you don’t have to read that one to understand this one, but it does provide some background to what I’m writing about here. Again, I’ll be addressing the situation here in the United States because that’s where I live and hold my license, though I do think a lot of the following arguments apply universally. And finally, if you’re tired of reading my broken record bullshit ranting and raving about art and censorship, you should probably skip this post. Drop in some other time.

First of all, what constitutes offensive art? There are probably as least as many answers to this question as there are people on Earth, so I don’t want to say I have an exact definition of the term. And I can’t refer back to the Supreme Court’s Miller v. California test here, because while it uses the term “patently offensive” in its second prong, it doesn’t define it other than to say that something patently offensive might be considered obscene. Moreover, different works of art offend different sets of people, and they offend for different reasons.

Yes, the First Amendment generally protects art from government prohibition, even if the author’s intent is mainly to offend. However, there are plenty out there who want to regulate art on the basis of its content, whether they perceive it to be too violent, or too sexual, or expressing an unacceptable political or social opinion. While these people aren’t anywhere near a majority of the consumer base, they’re fanatical and vocal enough to have their views taken into account by developers and publishers who will sometimes practice self-censorship simply to try to avoid a controversy.

I still don’t know if that’s why Nintendo censored Tharja’s butt in the Fire Emblem: Awakening DLC. I guess a tame bikini shot was just too much for American 3DS owners to handle.

I suppose it’s very obvious by now how I feel about these self-appointed guardians of purity and their efforts to strictly define the boundaries of what’s acceptable in art. I believe that people should have the right to enjoy any kind of art they like as long as that art doesn’t involve causing harm to others.1 My belief in protecting the integrity (and even the sanctity if you want to get really lofty about it) of art and its free enjoyment has a simple basis: that none of us chose to be born on Earth, into whatever society we happen to live in, so why shouldn’t we be able to escape from our daily lives however we wish? It doesn’t seem right that anyone should be prevented from getting their escapism in whatever way works best for them, and I’ll defend this position until I’m cold and dead in the ground.

Okay, so maybe I’m getting a little dramatic. But I feel just that strongly that people should be able to create and enjoy art freely. To that end, I’ve made a very incomplete roadmap of arguments to defend that position. I also have to admit that I feel this strongly in part because the above-mentioned fanatics like to go after some of the developers I like for their inclusion of erotic or even just plain pornographic content into their games. I’m not talking about criticism here, to be clear: I have no problem with someone saying they think a game or anime series I like is lousy for reasons I disagree with. Reasonable people can and do disagree about the quality of art — that in itself is completely normal. No, my arguments are directed against those who pressure developers and publishers to self-censor and who support restricting the sales of these kinds of works, banning them from online platforms, or taking similar action.

These are also purposely written as defenses, not as attacks. I’m not really interested in attacking anyone else’s personal views, just as long as said views aren’t put into practice with the effect of restricting the legitimate freedoms enjoyed by all the rest of us. Again, if you disagree with anything I’ve written below, please feel free to post a comment. Same if you’ve found a hole in any of my counterarguments.

So let’s begin. I’ll throw out some of the most common attacks I’ve heard along with my responses to them.

The distribution of socially harmful works should be restricted for the public good.

This is probably the most common argument I’ve seen in favor of censorship or heavy regulation, and probably because it’s one of the more convincing arguments its proponents have. While I don’t see much of a problem with pornography in itself, it’s true that its excessive use can hurt a relationship if it’s diverting attention from one or both of the partners. The same might even go for milder forms of erotic art, though it seems a lot less likely to be the case the tamer the content gets.

However, this is not a valid argument to restrict such content, much less to ban it from certain platforms. There are plenty of perfectly legal habits and practices that do more demonstrable harm to the people involved in them. Gambling, drinking, and tobacco use each arguably take a far greater toll on mental and physical health, relationships, and the public good as a result. Yet they’re not banned, and nobody outside of a few on the political fringes seriously suggest they should be. They’re regulated to some extent, but beyond that people are free to enjoy such potentially destructive habits. So unless the person making this argument is also advocating for the banning of all potentially socially harmful vices, it comes off as disingenuous. Even if some people may find a way to use such material irresponsibly, it doesn’t follow that it should be banned or strictly regulated.2

Not unless something like this ends up happening, and even then I’m probably okay with it.

That’s not even mentioning the fact that some works containing erotic content deliver what most people would consider positive social messages. Interspecies Reviewers, for example, has stirred up controversy for its sexual content, but from what I’ve seen of it, the manga and anime both express ideas of acceptance and diversity in a natural, non-stilted way. The content is certainly sexual, but the message is a good one. The same is true of many other works that take hits for being “fanservice garbage” or “basically porn” without regard for their context. In fact, a lot of the proponents of censorship don’t seem very interested in considering context. But context is everything. It’s what gives content its meaning. How can it be ignored if the argument is based on the supposed harm an artistic work might do to society? It’s also worth mentioning that there’s a difference between erotic and pornographic material, and also between non-sexual nudity and sexual content — differences that rely upon context. Context that, again, all too often goes ignored.

But nobody’s talking about a government ban.  Calls for the artists and the game industry to self-regulate have nothing to do with First Amendment rights.

It’s true that this isn’t a First Amendment issue, at least in the way these arguments are normally made. Groups that pressure artists to self-censor can claim that much. However, self-censorship can create the same kind of chilled environment for art that government censorship can, to the point that there may be no real difference between the two.

This isn’t just a hypothetical situation. It’s occurred throughout our modern history, both before and after the landmark Miller case. Looking back to the 1950s, we can find the Comics Code Authority, a private organization created by the comic book industry to regulate its own product. See also the Hays Code, which from the 1930s to the 1960s strictly regulated content in American films that the MPAA perceived as carrying immoral messages. And as recently as the 1980s, the Parents Music Resource Center, headed up by the wives of several prominent DC politicians, pushed for the heavy regulation of rock, rap, and pop albums for their perceived violent and sexual content. Senate hearings took place in which musicians as varied as Frank Zappa and John Denver warned about the dangers of censorship of music and of art in general. These proceedings resulted in a compromise, the infamous Parental Advisory sticker, which ended up becoming a kind of badge of honor for musicians whose albums received it — presumably not the effect the PMRC had intended.

This label should have just said “BUY ME TO LISTEN TO SWEARING AND WORDS ABOUT SEX”

This is the pattern of censorship of art in America: not direct government prohibition, which would in almost every case violate the First Amendment, but rather interest groups urging politicians to “encourage” industry associations to regulate themselves (fill in the blank implied by “encourage” however you like, but money is certainly involved, at least indirectly.) Sure, that doesn’t create a First Amendment issue, but the end result is nearly identical. So why should things proceed any differently now with video games? Starting in the 1990s, interest groups of various stripes have pushed for the regulation of games. This again resulted in a compromise with the creation of the ESRB and its rating system. Which I think is a perfectly reasonable, sensible approach to the issue. Mark games with content that might be objectionable on the box and let the consumer decide what to play on that basis. Or let parents decide what games are suitable for their kids to play. The creation of this framework should have ended the controversy about objectionable video and PC game content, but naturally it hasn’t, because games make for a convenient scapegoat when bad things happen. Easier to blame this weird new popular entertainment medium than to admit that there are underlying problems in society that need fixing and trying to actually fix them.

I suppose all this boils down to the following: while it isn’t, strictly speaking, a First Amendment issue, it doesn’t really matter if the end result is effectively the same as placing a direct ban on or restriction of erotic or otherwise off-color content. That’s assuming that the various interest groups in question don’t try to have such material banned outright, which is not something we can take as a given. As I wrote in my first post on the subject, there’s no reason to believe socially conservative groups that want to tear down the wall of separation between church and state would have any love for the free speech clause of the First Amendment. And I highly doubt the group of fanatics attacking artistic integrity from the political left would care either. Extremists and fanatics in general seem to think in the same way, even if their end goals are diametrically opposed. As far as they’re concerned, freedom of expression is a right that belongs to their camp and a privilege that may or may not be extended to others depending upon what they want to express.

However, that wasn’t exactly what our founders had in mind when they signed off on the Bill of Rights. It certainly doesn’t fit with the current understanding of the First Amendment, at least not since the old English legal precedent Regina v. Hicklin was overturned by the Supreme Court back in 1957.3 The Hicklin standard that governed until the mid-20th century defined obscene and therefore bannable art by testing “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of [the] sort may fall.” Though it’s usually not stated outright, this seems to be the standard that some of those on the extreme but very vocal fringes want to return to. The trouble with Hicklin, aside from being far too broadly worded, is that it requires a moral arbiter to decide what counts as an immoral influence. I know many of our friends on the far right and left would be happy to take that role, but good luck finding any consensus on the matter. This is the sort of thing that might work in a very small community where everyone goes to the same church, but the point is the standard wouldn’t extend beyond the bounds of that community. The alternative, again, is to impose the values of one of the lunatic fringe upon the entire population.

If there’s one thing the members of ResetEra and Focus on the Family can agree on, it’s that short shorts and thick thighs in video games are a terrible and corrupting influence on their players

So you’re that willing to defend your anime boobs and all that stupid nonsense? There are far greater problems to deal with than this, so you should just drop the issue.

I certainly agree that the human race faces greater problems than an outfit in a game being censored when it crosses the Pacific. I don’t need to look beyond the borders of my own country to see that. Our infrastructure is crumbling, our access to health care is still inadequate, many of our public schools lack funding, and our political system is currently being put through a stress test that it might not pass.

However, this argument is still worthless. Because we aren’t the ones creating the controversy: it’s rather those self-appointed guardians of purity on Twitter, Reddit, and elsewhere calling for developers and creators to practice self-censorship and attempting to use public shaming tactics to get their way. This is an attempted intrusion upon what I see as the artist’s right to create and the consumer’s right to enjoy art. If they want to blame anyone for manufacturing a controversy that might distract from more important issues, they should blame themselves.

You should get a life/get out of your parents’ basement/etc.

I only include these lines because they and others like them are thrown around so often in arguments about erotic and pornographic content in anime and games as if they had any bearing at all. In politics, irrelevant personal insults thrown around wildly can sometimes lead you to victory (just look at our current chief executive for proof of that.) However, when we’re trying to get to the truth of a matter, they’re merely a distraction. They’re also effectively an admission that your opponent in the argument has nothing left, so you may as well quit the conversation at that point.

Even supposing that people living in their parents’ basements who don’t get out much automatically lose the argument (which makes no sense whatsoever) it’s worth mentioning that fans of anime, manga, and games that may sometimes include some spicy content are all types of people living in all types of situations. But no, please keep ignoring that fact. Just keep throwing those bullshit insults around. We’re all antisocial unskilled basement-dwelling man-children. Oh yeah, and we’re all members of the alt-right too. Every one of us!

Just let me brush tails in peace. That’s all I want, is that so much to fucking ask

But how am I supposed to take you seriously when you’re placing a screenshot from a porn game in your serious post about law and art?

Okay, maybe you have a point, hypothetical opponent.

Then again, this is part of the point I’m trying to make. I will admit that certain expressions may be so extreme that the risk they pose to society outweighs the value of allowing them to be expressed. As an example, let’s say a group of people wants to stage public orgies, right out in the open. You could make a decent argument that this counts as an artistic expression depending upon how it’s staged, but aside from the fact that such an expression would violate existing public decency laws, I don’t believe it’s right to subject the general public to such an extreme display. However, many of the expressions people take issue with are nowhere near that extreme hypothetical. If your plan is to banish all depictions of nudity from society, you’d better start going around all the art galleries in the country loaded up with cans of spray paint. And in any case, to demand the regulation of what a person is allowed to enjoy in the privacy of his or her own home, no matter whether it counts as pornographic — that’s a different matter entirely.

Anyway, what do you think, reader? Am I insane? That’s entirely possible. I’m just tired of the unbearable smugness of these knights of purity, those guardians of propriety who think they can just enforce their views without any meaningful opposition. As long as people are too squeamish to talk about erotic and pornographic content, the pro-censorship and pro-restriction camp will have the advantage, and they will use it. So let’s not be shy about the matter. Our arguments can and should always be well-reasoned and civil, but we shouldn’t feel compelled to blunt them just because we think we’re on the less socially acceptable side. If I even possessed a few remaining fucks about what society thought of me anyway, being a lawyer for the last few years has taken them from me.

And now that I’ve given my big Braveheart speech, I’m done. I know there are plenty of people out there saying the same sorts of things I’ve written here, and many more thinking them, so it’s not exactly like we’re a lonely bunch. It can be easy to forget that sometimes, though. I also wanted to expand upon what I wrote in that first post and fill out the “why” part of it that I felt was lacking there. I hope I was able to do that without rambling too much. Next time, I’ll probably be both calmer and more coherent. Until then. 𒀭

 

1 I may as well throw intentional harm towards animals in this category to expand it to all sentient beings — I’m absolutely not a vegetarian, but I also don’t like the idea of harming animals for mere entertainment. It’s not an especially brave stance I’m taking here, I know.

2 This is the same argument proponents of cannabis legalization like to use, and I agree with it in that context too. I just don’t talk about it here because it’s not relevant to the subject matter of the site. Neither is politics in general, except when it intersects with art as it does in this case.

3 If you’re wondering why US courts were applying UK law in this case, it’s because US law was originally based on the old English common law system, and so the courts and even Congress would sometimes use an English precedent to base their rulings and bills upon when they couldn’t find an American one. Many of our own common law standards can still be traced back to the post-Norman conquest English legal framework, though you’ll hardly ever find anyone using an English or UK precedent anymore in practice. It’s also why we have so many old Norman French terms in legal jargon along with all the Latin. And no, we’re not letting go of any of it. It might be the 21st century now, but in some ways our profession is still stuck in the 13th.