Are Games Expression or Art?

I watched document Sex and the Silverscreen that was about the history of film expression, censorship and presentation of sex in film. Quotes and anecdotes from 10’s to 40’s sounded very familiar: they were similar to arguments that games are not a form expression and arguments for censoring games. US supreme court rule 1915 that games are not a form of expression similar to literature or newspapers. An argument supporting this conclusion, among others, was:

Are moving pictures within the principle, as it is contended they are? They, indeed, may be mediums of thought, but so are many things. So is the theater, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press,-made the same agencies of civil liberty. (Mutual Film Corp v. Industrial Commission of Ohio, 1915)

So, film would not be protected by freedom of speech and publication in Ohio or elsewhere in US as it is not expression or art; film more like circus and spectacles. Roger Ebert’s recent argument why games are not art seem to be based to similar logic:

I know it by the definition of the vast majority of games. They tend to involve (1) point and shoot in many variations and plotlines, (2) treasure or scavenger hunts, as in “Myst,” and (3) player control of the outcome. I don’t think these attributes have much to do with art; they have more in common with sports. (Games vs. Art: Ebert vs. Barker, 2007)

So, games are not art as they are have more in common with sports than, e.g., film.

US supreme court decided that film must be censored and as, among other things, “they may be used for evil, and against that possibility the statute was enacted” (Mutual Film Corp v. Industrial Commission of Ohio, 1915). Isn’t this basically the same claim than, e.g., ”[Rule of Rose] features children and perverse, violent and sadistic images that are harmful to human dignity” (B6‑0023/2007)?

Are games in the same situation that movies were over 60 years ago¹ or are my analogies bad?

Notes

1. In 1952 US supreme court countered the 1915 decision and argued:

It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. (Joseph Burstyn, Inc. v. Wilson, 1952)

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