Tonight I joined my local Fox affiliate for a debate on violence in video games: Should games be regulated? Should they be completely protected under the First Amendment? What about the California law that is even now being debated in the United States Supreme Court? We touched on these questions briefly, but if you’ve got the time, let’s go a little bit deeper, shall we?

The first thing to consider whenever talking about any law regarding the regulation of games is the medium’s First Amendment protection. This was first called into question back in 2002 when a U.S. District Court judge, Stephen Limbaugh, ruled that they did not in fact, deserve such protections. This was overturned in 2003 when the 8th Circuit Court of Appeals disagreed, citing other unusual works and their First Amendment protections, and the simple fact that video games are a “novel medium” does not negate the right to First Amendment protection.

So fast forward seven years to today. Since that time, several states have tried to pass legislation to restrict the sale of violent games to children, and spending hundreds of thousands of taxpayer dollars to do so, and each time these states have failed to make it stick. Why is that?

Well, it goes back to the very first thing to consider – games as protected speech under the first amendment. We may not like gory, schlocky, ham-fisted violence carnivals, but we as citizens have every right to produce them. To stop this would require the United States to create an exception in the First Amendment for games, which to date has only been done for porn, which one would be hard-pressed to equate games to porn. After all, if there are no Federal regulations on films, or books, why should games get set up for a metaphorical headshot?

Of course, no law as presented tries to restrict this: That’s true enough, but here is the sticker. Under the Fourteenth Amendment, we are guaranteed that no state may make a law that deprives citizens of our general rights, which we can interpret to include our entrepreneurial freedoms and freedom of enterprise. So logically, no state may enact a law that stops a store from selling unregulated material to whomever they want.

Further, to this point every law proposed suggests that government regulate these sales based on the Entertainment Software Ratings Board’s E through AO rating system. This goes against the Federal code of ethics, in which the government may not endorse a private enterprise. So that’s right out.

With the legal status of the laws or potential laws established, let’s look at the practical side of things.

One wonders how states or districts would enforce such laws, with many police departments stretched thin already, especially here in Detroit. Things aren’t as cushy as they look on Detroit 1-8-7. It’d be a waste of time and resources.

And further, the gaming industry does everything it can to make families aware of the content in the games they buy for their children. The ESRB has websites, pamphlets, point-of-sale documentation, shelf liners, all of which they distribute and are placed in stores to help parents make good decisions for their kids. It doesn’t take a whole lot of time or energy to take a look at what one’s son or daughter is asking after and determine whether it does or if it doesn’t have a place in the home. Of course, if one DID take more time on the subject, it could be a great jumping off point for some rather potent discussions between parent and child, and provide some great opportunities for parents to get involved and create some learning opportunities for kids. Everybody wins in that situation.

The fact of the matter is that legislating against games, whether they be violent or otherwise, is not possible from a legal standpoint. The furor that arises from this issue is the same that showed up when rock music first appeared, or TV and movies actually depicted couples kissing and Rhett Butler told Scarlett that he didn’t give a damn. It’s the same threat to our nation’s “family values” that was posed by Gangster Rap, and that “dilemma” was solved with a sticker.

Certainly there are games out there that kids should – perhaps even must – not be allowed to play. However, the answer to the problem does not lay within creating new laws, and new restrictions on our Constitutionally-declared freedoms. The answer lies in education, and a little bit of dedication and interest on the part of our families. Retailers as well, could do better in observing the ratings suggestions and in many cases – following their own corporate policies by keeping sales within those guidelines. Our legislators however, and our judges, need to keep out of it. They’ve got bigger and better fish to fry.