By IT-Lex Intern Joey Chindamo (LinkedIn)
In the wake of recent mass shooting tragedies, video games are once again in the crosshairs of U.S. lawmakers.
Take Connecticut state representative Debralee Hovey (R), for example. Rep. Hovey authored Proposed Bill No. 5735, a measure that seeks to establish a sales tax on the sale of video games with a “mature” rating. The text of the proposed bill reads:
That the general statutes be amended to establish a sales tax on the sale of video games rated ‘mature’ at a rate of ten per cent on the entire sales price and to require the moneys derived from such sales tax be used by the Department of Mental Health and Addiction Services for the purpose of developing informational materials to educate families on the warning signs of video game addiction and antisocial behavior.
Video game ratings come from the Entertainment Software Rating Board, or ESRB. Intended to help consumers make informed decisions about their video game purchases, the ratings spectrum ranges from “Early Childhood” for games approved for young children, up to “Adults Only” for games suitable only for adults age 18 and up.
Rep. Hovey’s bill is not the first video game tax bill to be proposed. House Bill No. 157 [PDF] from Missouri lawmaker Rep. Diane Franklin (R) proposes a 1 percent tax for video games with a rating of “Teen” or above.
As Techdirt notes, bills of this sort may be well-intentioned. But, they raise serious constitutional concerns. The Supreme Court of the United States in Brown v. Entertainment Merchants Association [PDF] clearly held that video games are protected free speech. In writing for the majority, Justice Scalia noted:
Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, ‘esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’” (quoting United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000)).
It would certainly appear that the High Court’s opinion in Brown would strictly prohibit these sorts of bills. Taxing one form of protected speech while not taxing others certainly seems to violate the First Amendment, and as a Forbes columnist notes:
[t]his is of course punishing an industry based on conjecture, as no concrete evidence has yet been put forth linking video games and violent actions. The Obama administration’s new gun plans do involve the NHS studying this link, but as nothing is proven (and likely won’t be), video games should not be treated in the same way as a product proven to cause cancer.
Arguably the most critical issue with legislation that seeks to tax only supposedly “violent” video games is the slippery slope it may create. If violent video games are excessively taxed, what about violent movies? Violent television shows? All are examples of constitutionally protected speech, and short of being labeled as “obscenity,” they will continue to be protected.
The Verge’s commentary on Brown, from back in 2011, is provocative:
[T]he law is clear that ‘obscenity’ only covers ‘depictions of ‘sexual conduct,’’ and that ‘violence is not part of the obscenity that the Constitution permits to be regulated . . . speech about violence is not obscene.’ That’s about as blunt as it gets when it comes to free speech: states can regulate sex, but they can’t touch violence. So it’s not so much that video games were ruled to be protected speech, but rather that they weren’t ruled to be unprotected speech like obscenity.
Stunningly heart-rending tragedies like the Sandy Hook Elementary School shooting in Newtown, Conn., or the Aurora, Colo. movie theater massacre have the power to both inspire change and polarize the country. But that change must remain constitutional, and it is likely Rep. Hovey’s bill is not.
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