The new anti-video game bill that emerged from the furor over the Florida school shooting faces constitutional obstacles and ACLU opposition.
Rhode Island state Rep. Robert Nardolillo III plans to introduce legislation that seeks to tax video games with an “M” rating or higher from the ESRB and use those funds to “increase mental health and counseling resources in schools.” The proposed law would impact two ratings: “Mature” and “Adults Only.”
The Daily Walkthrough talked with University of California, Los Angeles Law professor Eugene Volokh and ACLU of Rhode Island Executive Director Steven Brown, who both said there are a number of issues with the legislation.
The first problem, Volokh explained, is a free speech one.
“Video games, violent or not, are protected by the First Amendment,” he said. He referenced Brown v. Entertainment Merchants Ass’n, a Supreme Court case that struck down a California law because it infringed upon the First Amendment. The justices decided 7-2 that the 2005 law, which banned the sale of violent video games to children without parental consent, was unconstitutional.
The second problem has to do with taxation and the First Amendment.
“Taxes based on the content of speech protected by the First Amendment are generally unconstitutional,” Volokh told TheDW. “Since the ESRB rating is based on content, a tax based on the ES[R]B rating would be unconstitutional.”
He pointed to Arkansas Writers’ Project v. Ragland, another Supreme Court case from 1987. The justices found that an Arkansas sales tax burdened “rights protected by the First Amendment” because the tax was only imposed on certain types of writing.
Brown agreed with this assessment and told TheDW the ACLU opposes the legislation and charges that it’s unconstitutional.
“Video games, like magazines and newspapers, are protected speech. We believe any attempt to impose a discriminatory tax on certain video games based on their content violates the First Amendment. The state has no more right to tax an ‘M’ rated video game more than other games than it does to tax Field and Stream more than Time Magazine.”
The ACLU intends to testify “against the legislation” when it comes up for a hearing. Brown said he would be “surprised” if the bill went beyond the initial hearing, and confirmed the ACLU will issue a “formal statement in opposition.”
The final problem, according to Volokh, involves the legality of imposing a tax because of someone’s unknown future actions.
“The government [can’t] defend this on the theory that violent video games tend to cause violence,” Volokh explained. “Speech of a certain content can’t be restricted or taxed simply because it may lead some of the viewers to do bad things.”
Nardolillo’s legislation comes on the heels of Kentucky Gov. Matt Bevin blaming video games in part for Nikolas Cruz’s rampage that left 17 dead on Valentine’s Day. Bevin called violent video games “garbage” and said they’re “the same as pornography.”
The Rhode Island press release, found above, cites “evidence” showing children who play violent games “at a young age” are more aggressive toward children who don’t play those games.
President Donald Trump also briefly mentioned video games when talking with lawmakers about the Florida shooting. “The president told Florida Attorney General Pam Bondi that ‘I’m hearing more and more people seeing the level of violence in video games is really shaping young people’s thoughts,'” according to Forbes.
Ian O’Connor, the Rhode Island House Minority Office policy analyst, informed TheDW that the “legislation is still being drafted by our legal counsel.” He pointed to the American Psychological Association and American Academy of Pediatrics as the references for “evidence” noted in the press release, but did not provide links.
They “have stated that violent video games play a role in increased levels of aggression in children,” he said.
O’Connor did not answer TheDW’s questions in regard to whether they have looked at studies showing no link between video games and violence and whether they’ve received either pushback or support for the measure.