Today in “legislators are comically out of touch with how the world woks”, State Legislators in Pennsylvania put forth a bill that would add a 10% tax to any video game that receives a M for Mature or AO – Adult only rating from the ESRB (Entertainment Software Rating Board). The state would then take that money and put into the “Digital Protection for School Safety account”…because you know, protect the children. Unfortunately, text doesn’t let me express just how big my eye-roll at reading this was.
Instead, let’s talk about all the ways this is really, really dumb.
Video games don’t cause violence
First, the justification for the law, sponsored by Christopher Quinn, comes from the link between violent video games and increased aggression. The bill makes vague, uncited references to studies showing increased short term and long term aggression after playing violent video games. The problem is that nothing is shown conclusively, and finding even a correlation has largely eluded researchers. I don’t need to waste the screen space making this argument again, an article on Philly.com does a pretty good job of that for me.
Suffice to say that this is a weak justification. There’s no reliable evidence to draw relationship between violent video games and increased aggression. Studies have varied in their definitions of violent, aggression, short and long term impacts as time horizons. It’s hard to derive any sort of correlative outcomes, let alone direct outcomes. Researchers haven’t even started to assess potential impacts on a macro-level. And we can also throw in here that violence among youth has been a steady decline for the last 20 years or so. (refer to the Philly.com for citations / more complete breakdowns).
Legislation is based on a voluntary rating from a private commercial entity
Next up, the legislation is based entirely on the ESRB rating system. The ESRB rating system is 1) voluntary, 2) commercial and private, and 3) could be changed at any time without consequence or even go away altogether. The bill itself makes no allowances for changes to the rating system (which the PA government, or even the Federal government has no direct control over). That means that should the ESRB want to side-step the legislation, they only need to rename the rating levels. The bill being so narrowly defined would no long apply, and tax would no longer need to be collected.
Why would legislators have gone this route? Likely in a half-assed attempt to sidestep one of the Supreme Court rulings —Brown vs. EMA, where one of the points of contention was the overly broad and poorly defined criteria of “violent,” that failed to pass the court’s strict scrutiny test (read Alito’s opinion for more information). To avoid failing a strict scrutiny test, I assume Quinn outsourced the criteria for qualifying for the tax to an unwitting third party.
Violates the First Amendment
Finally, let’s talk about censorship though taxation. This tax actually becomes a First Amendment issue because it attempts to add a tax to a specific segment of medium with the intent and the effect of suppression expression. Quinn’s explicit goal here is to dissuade people from purchasing M and AO games by making them more expensive to purchase through taxes. The Supreme court said that was a no-go in Leathers vs. Medlock:
Taken together, cases such as Regan v. Taxation with Representation of Washington, 461 U. S. 540, Mabee v. White Plains Publishing Co., 327 U. S. 178, and Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, establish that differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas.https://supreme.justia.com/cases/federal/us/499/439/
The point here is that intent of the tax is explicitly to suppress expression of violent video games by taxing them and making them less desirable to create because of additional cost (heavy additional cost), chilling the industry away from those types of games. So this taxation actually becomes a First Amendment issue because Quinn is attempting to suppress certain members of a medium based on content, though taxation.
This legislation is a non-starter. I would go so far as to say that Quinn did nothing more than put token effort to make it look like he cared about the values he was espousing. But this is so poorly considered and poorly constructed that I don’t think it’s anything than virtue signally by the representatives involved.
Thanks to MassivelyOP for covering it first!