Suppose a Federal Judge was asked to determine whether books were protected by the First Amendment. Suppose instead of seeking testimony from noted literary scholars, examining the historical evolution of the novel, or surveying the range of content at the local bookstore, the judge choose four books, all within the same genre, to stand in for the medium as a whole. Better yet, suppose the judge didn’t even read the books and instead simply listened to the prosecutor read excerpts aloud. Would this seem remotely adequate?

On April 19, U.S. District Judge Stephen N. Limbaugh Sr. issued a decision, finding “no conveyance of ideas, expression or anything else that could possibly amount to speech” within contemporary video games, declaring that they therefore enjoy no constitutional protection. Limbaugh had been asked to adjudicate an appeal by the Interactive Digital Software Association of a Saint Louis law that restricted minor’s access to violent or sexually explicit videogames. The decision was astonishingly expansive, reaching a verdict about the current state and future development of a complex and evolving medium based on a cursory and superficial investigation.

While individual books like Lady Chatterley’s Lover and Lolita have confronted government censorship, no one has ever considered them representative of all printed matter. The constitutional claims of a medium have historically rested on our understanding of its highest potentialnot its worst excesses. Several decades of legal disputes over pornography have, if nothing else, determined that the works must be taken as a whole, rather than read in parts, to determine whether they were lacking in literary, political, or intellectual value.

But, somehow, games are different. Saint Louis County had presented the judge with videotaped excerpts from four games, all first-person shooters and all the subject of previous controversy. The IDSA had submitted videogame scripts designed to show their underlying dramatic structure. What does it suggest that neither side asked that the judge to actually play the games? His ruling misidentified Resident Evil as the Resident of Evil Creek, misspelled Mortal Kombat, and incorrectly capitalized Doom. In other words, the judge couldn’t even be bothered to get the titles correct for three of the four works he examined. All of the games considered were more than five years old, suggesting that the judge understood the medium as static rather than as evolving. Seen one game, seen them all.

When the case is overturned on subsequent appeal, as it almost certainly will be, Limbaugh will become an embarrassing footnote in the rather colorful history of judicial attempts to make sense of emerging media. Yet, in the meantime, the decision lends moral support to reformers who have long sought to regulate videogames as pornography while demoralizing those in the games industry who are pushing to improve their content.

As Christopher Weaver, founder of Bethesda Softworks, creators of Morrowind, commented, “Each game carries distinct qualities of play and experience that reflect the minds of the designers, artists and programmers who create themTo classify all videogames into some non-distinct pool of mental quicksand.is not only insulting, it is uninformed.”

Are some games banal, trivial, and bloodthirsty? Certainly, but then the same could be said of works in any other medium. Are games inherently incapable of achieving thematic significance? Of course not. As a close observer of the games industry over the past decade, I have witnessed a medium take shape, master its vocabulary, diversify content, enlarge its audience, deepen thematic ambitions, and confront ethical responsibilities. Games today are not what they were six years ago, and in six years will be beyond anything they have achieved so far.

It is at such moments of transition that First-Amendment constitutional protections are most urgently required. Regulatory solutions to media violence discourage innovation. In times when censorship pressures mount, the game industry is apt to become more timid, fall back on old formulas, imitate past successes. Something similar happened to comics in the 1950s when threats of censorship heightened self-regulation and cut short what many now regard to have been an important growth spurt in the medium.

We cannot realistically expect to rid games of violent content, since every storytelling medium in history has dealt with themes of violence, conflict, and aggression. Yet, as games mature, one can hope they will offer a meaningful perspective on the animal rage that lurks in the human heart. Violence is meaningful when it grows logically from the psychology of the characters, when the work explores its consequences, and the artist uses the story to explore some aspect of human aggression. These goals are best met through enhancing the art of game design, not by cutting games off from their mainstream market, thus insuring that games are made exclusively for “mature audiences.” Many games deal simplistically with violence because they still have a relatively crude vocabulary, inadequate for representing the full range of human experiences and emotions. Yet, many other games from Black & White to Morrowind are seeking morally complex ways to represent the consequences of violence.

The moral reformers and culture warriors have been largely successful in setting the terms of this discussion, framing games not as cultural artifacts but as commercial products, no more worthy of constitutional protection than a pack of cigarettes. The moral reformers have shifted attention away from the meanings and aesthetics of games and onto their alleged effects. Within their literal-minded logic, to represent something is to advocate it and to advocate it is to cause it. Limbaugh simply followed their lead, seeing no meaning in games because he has been taught not to look for it.

In an important new book, Killing Monsters, Gerard Jones investigates the meaningfulness of violent entertainment. Jones did what Limbaugh didn’t: played the games and talked with gamers. In a chapter focused on “shooters,” Jones concludes, “video games are most threatening to adults who have seen images of them but never play themIn just a few minutes of play, I saw that the whole point of the game is suspense: ‘I’ was in constant danger and had to battle through overwhelming odds to survive.” The experience of playing shooters, he argues, has more to do with overcoming obstacles, mastering fears, and taking risks than any fantasy of harming others. Two players may be simultaneously fragging each other in the fantasy world and bonding together in the real world. For this to occur, they have to make clear distinctions between fantasy and reality, distinctions which get erased by policy makers who believe you can stop people from killing if you take away toy guns.

The games industry has consistently sought to distance itself from the shooter genre, noting that, with a few highly visible exceptions, such games have not been commercially successful and represent a small subset of the total product on the market. Many game designers find their explicit blood and gore and through-the-gunsight perspective distasteful, arguing that these games are typically less complex in their meanings and narrative structures than other genres, such as role-playing, simulation, or “god games.” Killing Monsters pushes us in the opposite direction, insisting that such games can be highly meaningful to the people who consume them and that their meaning cannot simply be read from their hyperbolic surfaces.

As Jones writes, “in focusing so intently on the literal, we overlook the emotional meaning of stories and imagesYoung people who reject violence, guns, and bigotry in every form can sift through the literal contents of a movie, game, or song and still embrace the emotional power at its heart.” Drawing inspiration from the child psychologist Bruno Bettelheim’s analysis of fairy tales, Jones argues that the benefits of violent fantasy may outweigh the risks. Such fantasies may give children a vocabulary for exploring darker aspects of their emotions and offer them ways of transforming threats to their self-esteem into feelings of empowerment.

Judge Limbaugh’s parents no doubt told him that you can’t judge a book by its cover. Perhaps he should have also learned that you can’t judge a computer game from watching a video.