Freedom means responsibility
See, games today give us more freedom and more ways to express ourselves. Now it goes beyond simply our Xbox or Playstation profiles - games themselves are becoming modes of expression - whether it's levels in Little Big Planet or emblems in Call of Duty Black Ops.
But more freedom means more responsibility - and that's not something a lot of preteens handle successfully - at least that's my Xbox experience. So inevitably when these kids (and in their defense, plenty of adults too) get banned for misbehaving, one of the most common defenses that they use is their First Amendment Right to Free Speech – this is usually their justification for creating racist, homophobic, or just plain pornographic (hello giant pensises!) material in their profiles or in game.
The first amendment explained
So, does the First Amendment apply to these poor souls. The answer is no. But why?
First, and most important, the First Amendment does not entitle people to free speech - and that's in any capacity - whether you're in a shopping mall or on your Xbox. You can't go yelling racist things in a store or movie theatre any more than you can on a game of Halo.
So, what does the First Amendment protect? It protects you from the government limiting your speech. The American government in particular cannot pass laws or legislation that prevent the use of some language. But since Xbox and video games are private businesses and are non-governmental entities, this right does not apply.
Terms of service and video games
What does apply? Here's the second point: whatever rules the private business makes.
Specifically, for Xbox and Playstation, in order to use their services, you have to sign their Terms of Service Agreement. In that document, the companies outline what gamers are allowed to say and/or do, and what the consequences are if they don't behave. If gamers continue breaking these outlined rules, ultimating they can be completely removed from the service, no matter how much time they have spent on their profile or money on their games.
The same goes for games such as Halo or Call of Duty - when you play them online, you are agreeing to their terms of service - which includes other things such as boosting or modding. For example, get caught boosting in Black Ops, get banned for 48 hours - continue doing it after your ban and you run the risk of being blocked from playing the game online entirely.
Free speech is not a grey area
If there's one thing about language, it's ever-evolving. For people that watch over games, that means an endlessly changing list of what words, phrases and symbols are inappropriate.
As the head of Xbox's enforcement group notes, context is hard to determine, so they tend to fall on the side of prevention - sometimes that means accidentally banning someone for living in Fort Gay - but, at the same time, it means they can avoid getting into endless (and often ridiculous) debates with people about the historical context of the Swastika, for which I'm personally glad.
