Limbaugh's deliberations were based in part on his review of four games: "Fear Effect," "Doom," "Mortal Kombat" and "Resident Evil" -- though the court opinion misnames two of them as "Mortal Combat" and "Resident of Evil Creek."

"I think it is obvious that such a small sample is not conducive to a thoughtful analysis," says EFF's Tien. (Not to mention that three of the games are 6 to 9 years old -- quite hoary, by the young medium's standards.)

"First of all," says Henry Jenkins, director of MIT's Comparative Media Studies Program, "the decision is remarkably ill-informed. ... Imagine if I took a look at four books, all within the same genre, to determine whether literature was worthy of First Amendment protection. ... The judge even manages to misidentify or mangle the titles he cites, suggesting that he didn't look at them very closely."

In fairness, Doug Lowenstein, president of the Interactive Digital Software Association, repeated the "Resident of Evil Creek" misnomer when I asked him why only four games were presented to the court.

"A tape with excerpts of these games was ... submitted to the court by the county [of St. Louis] as part of the record," Lowenstein says. The IDSA legal team countered the tape with scripts to video games, he says, that emphasized plot and story lines aimed at proving that games qualified as speech. But, with the background of the 7th Circuit Court's favorable decision as a guide, "It was frankly inconceivable that this issue was in question." (Messages left with Limbaugh's office, asking if his honor had actually played any of these games, or if he had considered reviewing other games, were not returned by press time.)

From his ruling, Limbaugh appears to believe that no amount of contextual information, or additional narrative, in a game is enough to make it a work of art or expression worthy of the name "free speech."

"The court admits that these 'scripts' were creative and very detailed," Limbaugh says in his ruling. "However, this 'background' expression does not make every automobile, gadget, or machine created, a form of expression." In other words, any element that seemed like speech, in other words -- plot, dialogue, and so on -- was inconsequential to expressing anything substantial outside the game itself. And this was especially true in the narrow selection of games that Judge Limbaugh inspected. "[T]he Court simply did not find the 'extensive plot and character development' referred to by the plaintiffs in the games it viewed."

But is that enough to deny games their rightful constitutional honor? EFF's amicus brief for the 7th Circuit case argues that while the speech in a horror-themed video game is indeed trivial, it's no more so than a comparable gore-fest from Hollywood:

"To describe the artistic or communicative elements of such games as inconsequential, prompts the question, 'as compared to what?'" Certainly anyone familiar with the modern horror film genre would not suggest that this body of work contributes much to further the practice of deliberative democracy."

That may be, but it's hardly a banner you can rally the troops to: Computer games -- almost as important as schlocky drive-in crap!

The argument also seems to accept the assumption that as a communicative form, games can only rise to the level of exploitation film. "It is certainly possible for video games to convey political expression, criticism, etc.," Tien expands. "But as a general rule EFF does not like arguing that 'X can express political views, therefore X is speech.' First Amendment protections are not and should not be limited to political speech."

No doubt. But that still seems beside the point: As with pornography and gratuitously violent films, censorship inevitably targets media that's perceived to have nothing of value to say. (The St. Louis ordinance is specifically designed to regulate violent games that lack "serious literary, artistic, political or scientific value as a whole for minors.")

But even a brief review of several notable games from recent years suggests how wrongheaded that formulation really is.

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