Free Speech

R.I. Proposal to Tax Violent Video Games

But such a content-based tax would violate the First Amendment.

|The Volokh Conspiracy |

From Rhode Island state legislator Robert Nardolillo III several days ago:

Representative Robert Nardolillo III (R-Dist. 28, Coventry) will introduce legislation to increase mental health and counseling resources in schools by implementing a tax on video games rated "M" or higher.

"There is evidence that children exposed to violent video games at a young age tend to act more aggressively than those who are not," stated Rep. Nardolillo. "This bill would give schools the additional resources needed to help students deal with that aggression in a positive way."

Because states cannot ban the sale of certain video games to minors, Rep. Nardolillo's proposal would instead allocate money to counteract the aggression they may cause. The legislation would levy an additional 10% tax to video games sold in Rhode Island with a rating of "M" or higher. Revenue generated by this tax would then be placed in a special account for school districts to use to fund counseling, mental health programs, and other conflict resolution activities.

"Our goal is to make every school in Rhode Island a safe and calm place for students to learn. By offering children resources to manage their aggression today, we can ensure a more peaceful tomorrow," said Rep. Nardolillo.

Creative, and unconstitutional:

[1.] Video games—including ones that depict violence—are protected by the First Amendment, the Supreme Court held in Brown v. Entertainment Merchants Ass'n (2011).

[2.] Taxes based on the content of First-Amendment-protected speech are generally unconstitutional, the Supreme Court held in Arkansas Writers' Project v. Ragland (1987).

[3.] Some facially content-based speech restrictions are sometimes treated as content-neutral when they are seen as targeting the "secondary effects" of speech. But the tendency of speech to cause harm when children view it and act on it—even if such a tendency is empirically plausible—isn't treated as a "secondary effect." See, e.g. Lorillard Tobacco Co. v. Reilly (2001) (tobacco advertising); United Staets v. Playboy Entm't Group (2000) (sexually themed speech). "Listeners' reactions to speech are not the type of 'secondary effects'" referred to in the Court's cases.

And that's that, it seems to me. Thanks to Katie Frates (Daily Walkthrough) for the pointer.

NEXT: How Authorities Failed To Stop School Shooter Nikolas Cruz

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  1. Well I suppose the poor guy has to do something to get his name out there even if it is by being the butt of jokes. He has announced he’s running for Senator so he has to do something to pass the primary before losing to Sheldon Whitehouse in November.

  2. All that, plus the claim that violent video games cause children to be more aggressive is false.

    1. I think you’ll find the opposite is true. I strongly encourage you to survey the peer-reviewed research from groups with no skin in the game, such as public universities or the NIH. The effects of violent media on children are incredibly well-documented.

      1. Oh, indeed. Children that participate in competitive games – such as video games, board games, or sports – become more aggressive for a short while after playing.

        There is no indication that any players become more violent after playing. Especially hours or days after playing.

        There is also plenty of evidence that crime rates and video game playing are unrelated.

        1. Social science is not sure if violent video games provide a catharsis or just occupy time that would otherwise be spend doing activity that might be violent. They do not lead to an increase in violence in the aggregate, and in fact the more kids play them the more criminality goes down.

          However, I would suggest a reading of the book “On Killing” but Grossman on conditioning the mind. Video games on the individual level, train the mind and habituate one to shooting their fellow man without hesitation, which is why the most advanced military and self-defense training involves using them in 360 degree environments.

          For most of us, we would never kill someone unless we had too, but all things being equal, a FPS player would do a better job in a real life situation than one who has only ever played Madden NFL.

          1. Grossman does push that hypothesis – but has essentially no data to back that up. And again, we have lots and lots of data from the ‘natural experiment’ of declining violent crime rates despite increasing video game usage.

            1. That’s what I said, that crime declines with video game usage, either because the kids are to busy, or it is a catharsis. But we also have lots and lots of data about operant conditioning, which is what Grossman uses as evidence for his hypothesis. The training works; firing rates for the military have gone up, today’s rifleman is more willing to kill than his ancestors.

              1. Grossman’s data doesn’t support his conclusion. Many, many other things changed for the military simultaneously with the growth of video games. Some of them predate it and correlate significantly better with the change in behavior between today’s military and that of our fathers or grandfathers.

                First and foremost among those factors is the switch to an all-volunteer army. In other words, self-selection for those most likely to actually fight. Second is the increase in automatic weapons on the battlefield. (The research on why that is relevant even to those not carrying them is fascinating but more complex than I want to try to summarize in a blog comment.) Third I would put the deliberate change in military culture that focused on small group bonding – the tendency to fire and to fire effectively in order to defend your buddy next to you even when you might not fire to protect the faceless mass or even yourself. (You could argue that this factor is a consequence or extension of number 1.) Fourth – communications. It’s difficult to overestimate the tactical changes that come from pushing radios further and further down the chain of command.

                Grossman does not and probably cannot control for any of those other changes. He claims that operant conditioning is the dominant cause. I don’t buy it. A factor on the fringes maybe. No more.

                1. 1) Civil War armies at the start were volunteer and, still had low firing rates; these troops often all grew up together in the same towns. Also, lower firing rates for soldiers in WWII before operatant conditioning, but much higher in Vietnam after operant conditioning. WWII army was more volunteer than draft, and the Vietnam army more draft than volunteer. Either way, higher firing rates in Vietnam after the “man shaped” pop up target training was put into effect.

                  2) Troops rarely, if ever, use automatic fire. They are trained to use semi-automatic fire and pick targets, except for some exceptions like area suppression. Why would automatic fire, which still requires a conscious choice, be more or less likely, to get an individual soldier to fire? Crew served weapons, which diffuse individual responsibility, always had a higher rate of fire.

                  3) The small group bonding effect naturally occurs. Further, the Army undid some of this in Nam by having individual troops rotate after a 1 year tour, rather than as a unit. The troops in Nam, where you come in for your one year tour as the FNG, manage to survive for six months, see a buddy leave to go home, and some FNG replaces him, still had higher firing rates after conditioning.

                  4) There is no causal mechanism by which radio communications pushed down to the squad level would cause an increase of the rate of firing for an individual soldier who visually sees an enemy trooper.

                  1. Still not buying it. Too many conflicting factors to support the operant conditioning hypothesis and WAY too many conflicting factors to argue that video games are a significant part of that conditioning.

                    re: #2 – It has to do with the emotional freeze reaction. US Army research (circa the Korean War) clearly showed that a percentage of soldiers will not initially shoot but that the sound of others firing breaks them out of that freeze. As you say, crew-served weapons will often open fire first. And in doing so, generate that sonic “trigger” that allows the remaining soldiers to join in.

                    re: #4 – Yeah, there is. It has to do with contact with your buddies and breaking down the sense of isolation. It brings factor 3 back into play even when your comrades are out of your immediate view.

                    re: #3 – You are entirely correct that we screwed up the culture through the rotation cycles in Vietnam. That’s why we haven’t used that rotation cycle since. The culture change I was talking about was the one I lived through – after Vietnam but trained by officers who had lived through and personally understood the downsides of those policies.

                    1. I’m not trying to convince you, just others.

                      re# 2. The Vietnam era conditioning was pop up targets training troops to shoot the second they saw a target, getting them over the killing taboo and that emotional freeze by training shooting immediately at a man shaped object. This increased firing rates.

                      re#3. You undermine yourself by acknowledging that culture change. Even despite it, more troops fired in Nam, despite not having the same shared bonding experience. Why? Because of the conditioning.

                      re#4. You’re causal mechanism doesn’t apply. Individual soldiers don’t have radios, but the squad does. So again, how does having a squad connected with HQ more closely cause an individual soldier to fire more frequently?

                      It’s not the Law of Gravity, but conclusive enough that military/security forces prepare for war by engaging in video game training. It works because it prepares the mind to deal with a situation it has experience before, even if it wasn’t fully real the first time. Ever read Black Hawk Down? The author points out that lots of the soldiers he interviewed pointed out it was like “being in a movie” because to them, they had already “seen the elephant” in a limited way, unlike a farmboy from Illinois in 1862 at Shiloh.

                      The evidence points much more strongly to the conditioning that troops receive (and indeed what professional full time troops have always received) than your variables, which were undermined by the points I raised.

        2. Oh, indeed. Children that participate in competitive games – such as video games, board games, or sports – become more aggressive for a short while after playing.

          Even that is an overstatement. Most of the studies that try to look at this measure purportedly-aggressive thoughts, not aggressive actions.

      2. You are correct. They have been well documented. But they come to the opposite conclusion of what you are implying. Same goes for porn.

        groups with no skin in the game, such as public universities or the NIH

        Ah yes. Study doesn’t say what I think it should say so I’m just going to accuse researchers of bias. Do tell – what’s you opinion of climate change?

        [waiting with bells on]

        1. You appear to have been informed on this topic by children on the internet, which does not actually count as surveying the research. You have clearly not looked at any actual studies, which very consistently show increased aggressive behaviors after exposure to violent media, with an increased effect during adolescence, and probable longer-term effects during specific developmental phases. Video games show a stronger effect than more passive forms of media.

          As to bias, you can find religious organizations that have found strong links between later violent behavior and games. You can find industry advocates who have found nothing. If you want to cherry-pick advocacy research you can prove anything, but it also means you actively want to become a stupider person.

          I’ll ignore your climate change trolling, which is an obvious and pathetic attempt to derail the topic to one for which you have talking points ready to cut-and-paste.

          For the record, I like violent video games. I just replayed Borderlands out of nostalgia a month or so ago. But claiming that the things we do, see, read, and watch have no effect on our mental states is unsupported by research, is socially dangerous, and is frankly ridiculous.

          1. You still haven’t cited to any of these studies.

            In fairness, neither has regexp. But I’ll pile on with my observation that I have read exactly zero credible, replicated studies finding any long-term adverse impact after exposure to violent media but I have read several studies (with apparently solid methodologies and fully disclosed data) that showed either no or only very-short-term impacts.

      3. I’ve seen the studies. Like all social science, one can find results on each side. But the studies supporting the Evil Video Games narrative don’t measure violence. They measure ridiculous things that the researchers treat as proxies for violence, but that aren’t, such as how interested kids are in pictures of weapons after playing violent video games.

        But regardless of how many studies one swaps, the proof of the pudding is in the eating, and violent crime continues to drop in the U.S. despite the increasing prevalence of guns/violent video game/violent movies/internet porn/witches/whatever else the bogeyman du jour is.

        1. David Nieporent, what if it turns out (hypothetically, of course) that the number of people shot in the U.S. is increasing, while the number of fatalities diminishes?maybe because of better trauma care for gunshot victims? In your view, would that be violent crime continuing to drop, or violent crime on the increase?

          What if fewer people are being shot, but in the aggregate they are hit by notably more bullets? Is that an increase or a decrease in violence? In short, with the proof the pudding found in the eating, do you suggest that “Eat lead, M————,” means the same all the time, no matter how much lead the victim is required to eat? If not, does that mean that data on the number of bullets crime victims get hit with could contribute meaningfully to gun policy debates?

          1. “David Nieporent, what if it turns out (hypothetically, of course) that the number of people shot in the U.S. is increasing, while the number of fatalities diminishes?maybe because of better trauma care for gunshot victims? In your view, would that be violent crime continuing to drop, or violent crime on the increase?”

            This question only makes sense if you don’t consider attempted murder or assault with a deadly weapon violent crimes. That is not a position a serious person should advocate, even hypothetically.

            1. Well jph, if you do consider attempted murder or assault with a deadly weapon to be violent crimes, as I do, then asserting a decrease in violent crime based solely on a decline in fatalities would just be a reasoning mistake, right? Or maybe sophistry.

              That seems so clear and obvious that I can’t understand what you are getting at, or how you could have missed it. Just as an exercise, instead of dodging the question, why don’t you try to answer it as I framed it.

              1. Well jph, if you do consider attempted murder or assault with a deadly weapon to be violent crimes, as I do, then asserting a decrease in violent crime based solely on a decline in fatalities would just be a reasoning mistake, right?

                It would be, yes.

                Or maybe sophistry.

                No; sophistry would be pretending that anyone had made that reasoning mistake.

              2. This is what David Nieporent wrote: “But regardless of how many studies one swaps, the proof of the pudding is in the eating, and violent crime continues to drop in the U.S.”

                This is what Stephen Lathrop pretends David Nieporent wrote in order to make his “brilliant” argument: “But regardless of how many studies one swaps, the proof of the pudding is in the eating, and [the number of firearm fatalities] continues to drop in the U.S.”

                Stephen Lathrop is not a serious person.

          2. David Nieporent, what if it turns out (hypothetically, of course) that the number of people shot in the U.S. is increasing, while the number of fatalities diminishes?maybe because of better trauma care for gunshot victims? In your view, would that be violent crime continuing to drop, or violent crime on the increase?

            This question is nonsensical for the reason elucidated by jph12.

            What if fewer people are being shot, but in the aggregate they are hit by notably more bullets? Is that an increase or a decrease in violence? In short, with the proof the pudding found in the eating, do you suggest that “Eat lead, M————,” means the same all the time, no matter how much lead the victim is required to eat? If not, does that mean that data on the number of bullets crime victims get hit with could contribute meaningfully to gun policy debates?

            This is a discussion about speech policy, not gun policy. It’s hard to see what your hypothetical could possibly have to do with violent video games, unless your argument is that the video games don’t make people more violent but just give them better aim. Obviously better aim would not, in fact, constitute more violence. And the argument that we should restrict violent video games so that criminals will be more likely to miss their targets seems a bit silly, given that shots that miss their targets do not evaporate.

            1. What’s wrong David, can’t answer the questions? It’s disingenuous to call the questions nonsensical or off-topic after you yourself opened the way by asserting, “But regardless of how many studies one swaps, the proof of the pudding is in the eating, and violent crime continues to drop in the U.S.”

              My questions challenge that assertion, and, not incidentally, challenge also the possibility of knowing in any reliable way whether what you assert is true or not. Until Congress encourages the Centers for Disease Control to mobilize research on gun violence, and supports it with a federal mandate for local cooperation across the nation, claims like yours will remain empty blather.

              1. It’s disingenuous to call the questions nonsensical

                You asked whether I would think that violent crime is down if violent crime were up. Okay, technically that’s just dumb rather than nonsensical, but it’s a really dumb question.

                My questions challenge that assertion,

                Well, your questions didn’t; they posed hypotheticals. If I assert that the rate of U.S. pet ownership is increasing and you say, “What if hypothetically fewer people own pets? Would you still say that pet ownership is increasing?” that’s not challenging the assertion; it’s asking a dumb question. Similarly, if you say, “What if it turns out that fewer people own dogs and more people own hamsters?” that’s not challenging the assertion either. It’s just raising a non sequitur.

                challenge also the possibility of knowing in any reliable way whether what you assert is true or not. Until Congress encourages the Centers for Disease Control to mobilize research on gun violence, and supports it with a federal mandate for local cooperation across the nation, claims like yours will remain empty blather.

                It’s highly unclear why an agency tasked to control disease would be researching gun violence any more than it would be researching net neutrality. But setting that aside, are you actually claiming that the CDC is the only (let alone best) agency to investigate violent crime rates? You do realize that the DOJ tracks crime rates, right?

                1. Yes, I do assert that the CDC is better equipped to study gun deaths and injuries than the Department of Justice is. It’s an easy call, if for no other reason than the DOJ already oversees crime “data” which turns out to be full of holes every time anyone checks. That might improve if Congress gave the DOJ the same power I argued it ought to give CDC?the power to compel local reporting.

                  But probably more important is that the CDC is really, really into using epidemiology?and statistical methods generally?to drill down into data, to find and measure cause and effect relationships. The DOJ, not so much.

                  It’s a simple fact that the nation does not now have gun data sufficient to establish agreed-upon facts to support political debate about guns. The DOJ has been in charge, so it gets the blame for that. If they could do it, they should have done it already. Time to let someone else try. Or if there is a sense of troubled politics involved, let them both do it, and see which methods look better afterward.

                  I should add that my focus in this discussion is not on “violent crime rates,” which might be better managed by the DOJ. My focus is on deaths and injuries specifically?which seems like a natural nexus for the CDC.

                  1. “That might improve if Congress gave the DOJ the same power I argued it ought to give CDC?the power to compel local reporting.”

                    I’m curious what you think about Congress’s power to compel a local government to turn over information regarding the citizenship status of the people it arrests.

                    1. I think the power is alike in either case. To get cooperation, Congress would have to trade local aid for whatever specifics it required the locals to supply, with their full prior understanding and consent to the terms they agree to. I anticipate that would be effective in the case of gun study information, but politically fraught and less successful in the case of immigration questions. The latter differ from the former in that turning over citizen status information is often perceived, accurately I think, as contrary to local law enforcement interests. Although you personally might object to collection and compilation of gun crime information, I doubt very many localities would see it your way.

                    2. “Although you personally might object to collection and compilation of gun crime information, I doubt very many localities would see it your way.”

                      Which explains the 100% cooperation rate the DOJ has with its collection efforts. Localities that want to cooperate, and have the resources to do so, are already cooperating.

                      “Congress would have to trade local aid for whatever specifics it required the locals to supply, with their full prior understanding and consent to the terms they agree to.”

                      I don’t think you’ve really thought through the commandeering analysis. You make it sound like Congress is entering into a contract with each locality rather than passing generally applicable laws. How much will it cost? You have to make it enough to induce the holdouts, but most localities are already participating and everyone gets paid the same rate. What is the relationship between the local aid and the reporting obligations? I’m sure congressmen will love passing a bill that tells their constituents that their municipality will lose federal funding for reducing gun violence if their sheriff doesn’t submit a form. What if a locality rejects the trade? Remember, the conditions can’t be coercive.

                    3. Go ahead. Let the rural right wing dig in its heels. The vast majority of people in the country live in places which would cooperate. You will get a sound analysis even if Shoshone, Idaho, or Burns, Oregon decide to opt out.

                      I have a suspicion that gun advocates won’t want a real study done at all. Maybe that’s how you feel. If so, you and your allies are making a risky bet. Are you really sure Democrats will never again control all 3 branches?

                      Sound, agreed-upon information might point the way to gun compromises that would stop short of bans and confiscations, or at least narrow those. Keep at bay the information necessary for compromise, and someday political power will be back in the hands of your opponents. If you haven’t preempted their agenda with a previous compromise, they will jam whatever they want into law without you.

                      Pro-gun politics is right now as powerful as it has ever been. This would be the time to negotiate. Waiting instead for the moment when the other side holds all the political cards and forces you into negotiation is foolish.

                    4. “Go ahead. Let the rural right wing dig in its heels. The vast majority of people in the country live in places which would cooperate.”

                      Why aren’t they cooperating now? You are complaining that the current system is so flawed that we don’t even have enough information to have a meaningful discussion, but if we change the agency making the request from the DOJ to NIH somehow everyone will magically get on board. That’s nonsensical.

                      Have you ever considered that maybe the reason the DOJ can’t get full compliance is because it’s actually pretty hard to force states and localities to comply?

                      “Are you really sure Democrats will never again control all 3 branches?”

                      I don’t care. Some Democratic politicians from states where Democrats like to carry guns as well are already grumbling about how the Democrat’s latest round of grandstanding is going to make it tougher on them.

                      “Sound, agreed-upon information might point the way to gun compromises that would stop short of bans and confiscations, or at least narrow those.”

                      If you continue to pretend that we don’t have enough information to know that the vast majority of gun violence in this country happens with a handgun, not a long gun, there’s not much point. The current hysteria about bump stocks and assault machine guns with chainsaw bayonets is driven by emotion, not data.

                  2. Thinking further, there is an obvious division in expertise and focus between DOJ and CDC, with both positioned to make better contributions in its specialty areas.

                    DOJ has the experience working with, and influencing, local law enforcement agencies. Those are the people needed to supply boots on the ground for collecting standardized crime scene information to contribute to a gun study.

                    CDC has the expertise to work with medical agencies, and to gather and manage medical data appropriately guarded with privacy protections?some of which are specifically in place to control access by folks like, for instance, the DOJ. Questions abut medical consequences of gun violence will be better handled by CDC.

                    In addition to those, it would probably be useful to round up a few scholars trained in economics?not just for their economic expertise, but even more for their habits of systematizing information to create an overview of whatever topic they are asked to study.

                    1. I’m kind of astonished that you think that the DOJ doesn’t already employ statisticians to analyze data. Did you think everyone who works there is a field agent or something?

                      Also, you know that crime data doesn’t just come from police, right? UCR are only one of the sources of DOJ data. They also utilize the NCVS to gather data directly from the public.

      4. Yeah, right. Public universities and the NIH. No skin in the game? They ARE the game.

        1. What is there incentive regarding the video game market?

          Or are you just being reflexively anti-scientist because that’s how the tribalism works now?

        2. When public universities and the National Institutes of Health constitute the enemy, you are no longer part of society’s mainstream, or even within the first cut of fringe. You also are no longer part of society’s useful element.

          These folks are free to continue muttering bitterly and inconsequentially from the sidelines, however.

          1. There is a gaping chasm between saying that public universities and the NIH are vulnerable to biases on various issues and calling them the enemy.

          2. When public universities and the National Institutes of Health constitute the enemy, you are no longer part of society’s mainstream, or even within the first cut of fringe. You also are no longer part of society’s useful element.

            Spoken like a liberal who is at war with the conservative-libertarian alliance.

  3. I bet a lot of the people laughing at this attempt to dig up old arguments about how seeing violence in video games and media transforms kids into brutal murderers will turn around and write on their blogs or post in social media about how video games and media are turning boys into macho sexists and girls into insecure anorexics.

    1. Silly people ‘I bet’ are writing blogs is a much bigger deal than politicians grandstanding for anti-speech positions!

      BTW, most of the people I see arguing for less macho dumbness in games and movies posit a more subtle effect than the Jack Thompsons of the world. Though maybe I’m reading the wrong blogs.

      1. You’d almost have a point if it wasn’t the left trying to push toxic masculinity as the cause of school shootings.

        1. Geez, I didn’t know “toxic masculinity” was now part of the right’s shibboleth in the culture wars. Thankfully the author clarifies that it means physical abuse. Are you on the pro-physical abuse side of the argument?

          Also, even if you removed the “toxic” part, the evidence is overwhelming that masculinity does, in fact, correlate with mass murder (as it does with all violent crimes). When was the last time a woman started blasting people away in a school?

          1. The author does not “clarif[y] that it means physical abuse.” And it does not. It means conformity to what are considered “male” attributes, such as dominance, self reliance, etc. And there are lots of characteristics that correlate with violent crimes.

            1. The Las Vegas shooter? Verbally abused his girlfriend in public. The Pulse nightclub shooter? Abusive and beat his first wife repeatedly and threatened to kill his second wife, after physically abusing her as well. The shooter who opened fire on Republican members of Congress at a baseball practice? Physically abused his daughter and other women. The Planned Parenthood shooter? Accused of physical abuse by 2 of his ex-wives and previously arrested on a count of sexual violence and rape.

              Except for Vegas, sure seems like physical abuse is the common thread.

              Also, toxic masculinity is not the same as masculinity.

              1. So, if we ignore 20% of the samples, we can find a common thread. Brilliant!

        2. So when I say blogs aren’t the same as politicians you counter…with a blog. From 2017. That doesn’t mention video games.

          That cherry-strawman hybrid seems like it’d taste awful.

    2. I bet none of them are!

  4. In an age of proliferating speech-like phenomena, it may be time to work out a test to determine what is, and what is not, the kind of utterance the 1A ought to protect. The need for such a test will be evident, I suggest, to anyone familiar with technical trends (or, indeed, recent political campaign trends). Those now promise a future full of programmed electronics?owned and operated by non-human entities such as governments or corporations?deterministically intervening for the purpose of disruption into attempts by actual humans to use speech in ways the 1A is intended to protect. To counter that, I propose a 3-part test:

    1. Is the speaker a specific natural person.

    2. Can a specific utterance be identified for which 1A protection is claimed.

    3. Did the speaker intend that specific utterance at the time and place it occurred.

    Unless speech-like stuff passes all 3 of those criteria, I suggest it should not get 1A protection, or at least not content-based 1A protection.

    As a first approximation of a way to protect core 1A speech from automated disruption, that might or might not do. Maybe thoughtful people could improve on it, or come up with something different and better. But something along those lines is going to be needed.

    So my question for this thread: If that test were the rule, would video game content pass it?

    1. Why don’t you start by identifying exactly what would pass your silly test.

      Running around yelling “Hurr, that’s not speech” (as seems to be your current hobby horse) doesn’t strike me as a particularly persuasive argument.

    2. Okay, first thing, we ban Stephen Lathrop from posting on the Internet because typing isn’t an “utterance”, and he only wants to protect “utterance[s]”.

      Or is that not what you meant to propose?

      1. Silence is golden. Duct tape is silver.

    3. Second thing, we ban the New York Times, MSNBC and CNN, because they’re not “a specific natural person”, and they keep spewing fake news.

      1. I’ll settle for that. I’d really like to turn the clock back to the early 20th Century when we could cane repulsive newspaper editors in the street for their antics.

        1. Yeah, there were super amounts of freedom and honest media back then!

          I love it when it’s pointed out that a suggestion allows fascism, and someone else is ‘Yeah, ain’t it cool?’

          1. You want something else, try a libertarian site.

            Or perhaps just about anything other than a site that attracts disaffected, marginalized right-wing authoritarians.

          2. I swear I’ve seen you defend the Antifa tactics at Universities and even handwaive them away as isolated incidents.

            1. What kind of off-topic ad hominem are you pulling here? Not sure how anything I said makes croaker any less a right-wing fascist.

              But also, despite your being super sure, I’m very much anti violence as a political tactic. This includes Antifa. I’ve called them angry idiots looking for an excuse to be violent, and using politics to do so.

              I continue to not be the cartoonish liberal you take me for!

          3. Sarcast0, I’m unclear about your comment. Are you asserting my suggestion allows fascism?

            1. Unless you have a way to limit it to avoid Michael P’s hypothetical anti-media law, it does!

              1. Every comment or remark from those media companies, as far as I know, comes from a natural person. On what basis?other than reflexive right-wing antipathy to “the mainstream media”?could anyone confuse what they do with automated speech?

                Or, if that’s not your cup of tea, then the 1A makes them special corporations, because they are press corporations.* And anyone else who’s a natural person can enjoy freedom of the press too. At least in this comment, I’m just trying to build a fence to keep the bots out.

                *Because corporate conflation arguments intend to erase distinctions between press corporations and others?and get traction on the political right?I have mentioned previously the possibility of special rules for press corporations, to distinguish them. Any corporation would be free to choose to be a press corporation, but the special rules for those would seem onerous for typical per-share-voting commercial corporations, which would consequently leave the press side of things to purpose-built corporate media. In those comments, I was trying to do more than keep the bots out, I also wanted to separate the genuine media from the genuine plutocrats, and make the plutocrats speak for themselves, as natural persons, just like ordinary people have to do.

                1. “Every comment or remark from those media companies, as far as I know, comes from a natural person.”

                  By that criteria, every statement made by every corporation in every industry and every non-profit organization comes from a natural person, so you’ve rendered that criteria completely meaningless.

                  1. Nah, Matthew. You have a point, sort of, but I understand a point you willfully dismiss, because you irrationally dislike mainstream media. They still supply today the great majority of information you rely upon to interpret the world. If you are like a lot of folks on the political right, you may be in denial about that.

                    But that’s not really the point I mentioned. That point is that from the founding era until now, the 1A was intended to protect an institutional press. Not to protect an institutional press exclusively, but to give the institutional press privileges and scope for action which anyone else can have too, but which only an institutional press will usually mobilize and make use of?all so you won’t be the kind of ignorant fool we would all become if that were not so.

                    And one more thing. There isn’t an iota of evidence in the historical record to suggest that the founders intended per-share-voting commercial corporations to also exercise those press privileges. Nor are those corporations, or their managers, or their other stakeholders, punished in any way if the corporations don’t get those privileges. Nor is it wise now, regardless of the founders, to empower ordinary commercial corporations with such privileges.

                    1. “That point is that from the founding era until now, the 1A was intended to protect an institutional press.”

                      No it wasn’t.

                      “There isn’t an iota of evidence in the historical record to suggest that the founders intended per-share-voting commercial corporations to also exercise those press privileges.”

                      There isn’t an iota of evidence that your press corporations have ever existed, so I think per-share-voting commercial corporations are still winning.

                2. Now, a further remark to Sarcastr0. Taking “facist” not as an epithet, but as a political term, rooted in history, there is nothing at all fascist about limiting press freedom for commercial corporations. The contrary, actually. Fascism in history relied, among other things, on using corporations as quasi-sovereign-equivalents, to empower state actions, especially when the normal course of politics would have blocked those actions if taken by the state directly. Historically, politically empowered corporations have been understood either as akin to title of nobility, or attempts at joint sovereignty?either way, baleful for liberty, and corrosive to the notion of popular sovereignty.

                  If you doubt that applies in the U.S. today, make it a point to notice what kind of person is usually most avid about extending civil rights of all kinds?and especially press freedom?to commercial corporations. They fall into two general classes. First, libertarians, who are generally doctrinaire opponents of America’s popular sovereignty. Second, malcontents?people unhappy that American popular sovereignty now embraces less familiar classes of people of whom the malcontents disapprove?as joint sovereigns with the others.

                  Both classes have arrived at the conclusion that commercial corporations acting in concert might become promising rivals against American popular sovereignty. There is something to that, which makes it wise to oppose it.

                  1. “If you doubt that applies in the U.S. today, make it a point to notice what kind of person is usually most avid about extending civil rights of all kinds?and especially press freedom?to commercial corporations.”

                    Almost all newspapers are owned by commercial corporations, and have been for a very long time. Almost all TV networks are owned by commercial corporations, and have been for a very long time. Almost all radio stations are owned by commercial corporations, and have been for a very long time. Most publishers are owned by commercial corporations, and have been for a very long time.

                    And commercial corporations have been entitled to civil rights, of a wide variety of kinds, for a very long time. Nobody is avidly attempting to extend press freedom to commercial corporations because they already have it.

                    1. I’m puzzled, jph. You don’t strike me as a plutocrat. But you certainly seem committed to say what you can to solidify plutocrats in government-enabled places of special power and privilege. Why? Is it only because you think liberals oppose plutocracy, so that’s all you need to know? I’m asking this for real, because you seem unaware that the tendency of your arguments is to make meaningless the privilege of free speech for natural persons.

                    2. I just prefer to live in reality rather than Imaginationland. Everything in the post you are responding to is a fact (although I do admit, I didn’t bother looking up the ownership percentages, but I’m fairly comfortable in my estimates). It’s important to start with facts when discussing issues (you pretend to acknowledge this when it comes to gun violence). You want to pretend that press corporations aren’t commercial corporations, that commercial corporations don’t have First Amendment rights, and that those evil libertarians are trying to give commercial corporations First Amendment rights because they hate popular sovereignty. None of those things are true. So what is the point of having a discussion based on conditions that are almost completely untethered from reality?

                      “Why? Is it only because you think liberals oppose plutocracy, so that’s all you need to know?”

                      Why would I think that? Liberals call on corporations to make political statements all the time and love when corporations say and do things that conform with what liberals like. This isn’t a conservative-liberal issue.

                      “I’m asking this for real, because you seem unaware that the tendency of your arguments is to make meaningless the privilege of free speech for natural persons.”

                      No, it really doesn’t. And the fact that you think it does only increases my confidence that it does not.

        2. I’d really like to turn the clock back to the early 20th Century when we could cane repulsive newspaper editors in the street for their antics.

          Ah, yes, the “good ol’ days” — illusory, but still a powerful draw for some — in which one could not only enslave and brutalize blacks but indeed put the cane to a man who tried to stand up for the blacks.

          I hope no one tells people like croaker how counterproductive their contributions are to their preferred side of these exchanges.

    4. Why should we use your test? Your test rules out movies, paintings, sculpture, and printed media from have 1A protection. It’s already crippled to begin with, no point in continuing beyond that.

    5. Under your rule, Stephen, would a 10% tax on political publications be allowed?

    6. So the government can censor the New York Times as much as it wants? Because the NYT is a corporation not a specific natural person.

      Your criteria are absurd.

    7. No, which is one of about a thousand reasons that nobody is going to adopt your test.

      1. NToJ, what’s your test? Or are you okay with automated “speech” getting 1A protection, and being used?whenever the owner of the automation disapproves of public discussion?to drive human commentary off the internet?

        More generally, I come at this from the point of view of someone trying to protect human speech, and get back responses from pseudonymous commenters apparently no more thoughtful than bots. The notion of protected categories implies also unprotected categories, or else it’s meaningless?hence the need to figure out how to tell which are which. If we plan to extend 1A protection to EVERYTHING, then that will turn out to be functionally indistinguishable from no protection for ANYTHING.

        Maybe it was a mistake to bring this up among a crowd which probably cares more about playing video games than it does about core 1A speech.

        1. “More generally, I come at this from the point of view of someone trying to protect human speech”

          Odd that virtually every one of your proposals involves restricting human speech then.

          1. I would upvote jph12’s comment 50 times if allowed.

  5. Third thing, we ban recording devices, because the specific natural person who made those utterances didn’t intend that utterance at the time and place it is played back.

  6. While this assessment reflects current precedent, it’s also the case that the Supreme Court is currently divided 5-4 or 4-5 on many issues, has frequently overturned its precedents its precedents when new justices arrive, and had had an increasing tendency on both sides to incorporate policy considerations in its decisions. We are also in a society with rapidly changing social mores on many issues.

    These tendencies all make very rational for people who lost the last round to try again when there’s a change of personnel, or simply some time has passed and social changes have had more opportunity to take effect. Perhaps the new people will be more open to the argument.

    In many respects I think the Court has behaved somewhat more like a legislature of late. Behave like a legislature, and it’s eminently rational that people will start treating you like one, not take your decisions as fixed or permanent, lobby for personnel who not merely share their philosophy but will vote their way on specific issues, and periodically ressurrect supposedly settled issues and bring them up for re-consideration.

    1. The Supreme Court doesn’t quickly overturn it’s precedents when new justices arrive.

      People with a particular issue will keep bringing court cases regardless.

      People have been accusing the Supreme Court of legislating from the bench since Marbury.

    2. Except that the Supreme Court is not actually divided 5-4 on “many” issues. They appear to be divided because the media makes more money playing up the cases that are divided and tend not to cover the many more issues that are unanimous or nearly so.

      By the way, on First Amendment issues, the Roberts Court is rarely divided. So while your argument might make sense on some issues, it seems unlikely to be relevant to the video games debate above.

  7. And this isn’t limited to judge-made law. When everything is seen through a judge-made lens, precedents supposedly based on straight textual interpretation become equally up for grabs. Nothing is permanent. Nobody ever has any settled rights.

  8. Representative Robert Nardolillo III (R-Dist. 28, Coventry) will introduce legislation to increase mental health and counseling resources in schools by implementing a tax on video games rated “M” or higher.

    “There is evidence that children exposed to violent video games at a young age tend to act more aggressively than those who are not,” stated Rep. Nardolillo. “This bill would give schools the additional resources needed to help students deal with that aggression in a positive way.”

    And if the “M” is done due to sexual content and not violence? What then?

    And if you want to insure the kids aren’t “getting too violent”, let them fire a real assault rifle. It is worlds different.

  9. Why are religious organizations exempt from taxes? Isn’t that a content-based decision?

    1. It’s not content based, it’s activity based. Same as any other non-profit.

      1. Televangelists appreciate that endorsement, but were too busy arranging maintenance for their $10 million residences and $20 million aircraft to respond.

        1. If you can show me an example of that, and proof it had tax exempt status, I’ll listen. In the mean time, you’re still just making up wild accusations to justify your bigotry against groups you hate.

          Carry on tyrant.

            1. “They will pay around $260,000 in property taxes on the new home this year.”

    2. If only religious organizations were exempt, it might be a problem [see, e.g., the Texas Monthly case], but the exemptions tend to be broader charitable & non-profit type deductions.

      There are specific deductions such as for housing that might be problematic there. There has been various things written about it. On the other hand, one reason that arises for religious organizations in particular is that it can promote separation of church and state & avoid various problematic entanglement and other issues.

  10. Right up there with that gay-in-the-closet-Baptist in Virginia that proposed all internet devices be forced to block porn unless the owner paid the state a $20 license fee to unlock each device. That has first amendment issues as well, wouldn’t you think?

  11. So would a 10% tax on all video games be legal, or would such a suggestion be tainted by the fact that the legislator had once said “M” rated video games led to violence, so it was obvious that he was proposing legislation based on his prejudices?

    1. If this were a single-person legislature somehow, I think this would be a legit concern, actually.

      ‘I’m going to tax violent video games.’
      ‘You can’t do that.’
      ‘Oh…In an unelated matter, I’m going to tax all video games.’

      That looks a lot like pretext for an unconstitutional purpose to me. And courts do not like being manipulated.

      1. Right.
        Pay no attention to the declaration of “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” “it is not a tax” from Obama turning into “It’s a tax” by the supremes.

        Looks like someone got manipulated all to hell and back on that one.

        1. Hehe, arguing something before the Supreme Court that the Supreme Court ends up buying is litigation, not manipulation!

    2. So would a 10% tax on all video games be legal, or would such a suggestion be tainted by the fact that the legislator had once said “M” rated video games led to violence, so it was obvious that he was proposing legislation based on his prejudices?

      Based on brand-new judicial beliefs…it’d be bad because he once said it. So, no, he could never propose a tax for any reason because of it. No matter what the tax legislation actually contained.

      I think it’s a stupid law. What competition doesn’t have the participants “more aggressive” for a little afterwards? Have these lawmakers never played a sport in their lives>

  12. Are game ratings voluntary like the old Comics Code? If yes, the problems this might cause the industry kind of solve themselves: end, or change, the rating system. Of course, there’s that whole constitutionality thing, too.

    1. Voluntary…but they are held more stringently than, say, movie ratings (Game ratings are used WAY more consistently than any other rated material out there). In fact, parents will frequently bitch at store reps who attempt to enforce them.

  13. Man, 40 comments and no one realized the most obvious thing — the ESRB will just change the ‘M for Mature’ to ‘L for LotsaViolence’.

    1. Just wondering; who exactly determines that all persons mature at exactly the same rate, and age is the appropriate indicator for game/movie/life ratings? Is it the same person that determined there is no difference between porn sex, violence, and romantic love making?
      Any chance at all that they are full of it?

      1. The same people who say you have to be 18 to fight and die for your country, and 21 to order a beer.

      2. Its a fallacy to assert that because a particular boundary is imperfect or arbitrary, that the distinction as a whole is irrational. Sure 18 to vote or 21 to drink is arbitrary, even the notion of a ‘year’ as a measure of maturity is nonsense*. But of course having some voting or drinking age is eminently sensible, even if whatever age you chose is arbitrary.

        * Why would maturity correspond to integer numbers of astronomical years?!

        1. Look at Neil deGrasse Tyson, trying to take away our birthday celebrations. Though I have to point out that we rely on calendar years, not astronomical years.

          But I agree, much as with Louisana’s 75 miles as the crow files, just because a limit is arbitrary doesn’t make it irrational.

  14. Delegation of authority issue? Video game ratings are issued by the ESRB, a private entity.

  15. We should pass a law to prevent minors from buying violent video games. We also need a waiting period so that we can do a mental health background check on adult purchasers of video games. We should also make the purchasers of the video games pay a fee to cover the cost of the mental health background check program. We need to limit dealers of violent video games to more than 500 feet away from schools, churches, residential areas, and other video game sellers. We need safe video game storage laws to make sure that children are not allowed to access violent video games. We need universal mental health checks to prevent online and private party sales of violent video without going through the mental health check. Each violent video games needs to have a unique identifying number so that they can be tracked in case they fall into the wrong hands. Of course, all video games will have to be certified to be not unsafe and an annual fee paid by the manufacturers to keep these not unsafe guns on the roster of games that can be purchased. Any new games added to the roster will require technology that doesn’t exist or they will not be allowed to be sold. And of course we will have to limit purchases to one per adult per month.
    (cont)

    1. (Continued from above)

      Now some people will say that the First Amendment protects violent video game rights and that these laws would not be constitutional. But the First Amendment is not without limits. I mean, the founding fathers didn’t know about video games in the 1700s!

      Surely a little inconvenience is worth the lives of our children. After all, we’re not saying you can’t have them. We are just asking for some common sense laws that will protect our children. If it saves one life it is worth it. Anyone who doesn’t support these laws has the blood of our children on their hands. It’s past time to compromise on these common sense video game control laws. Aren’t our children’s lives worth more than your fun? These laws may not solve the problem but we have to start somewhere. We just can’t keep sitting on our hands. We have to do something! Congress needs to stand up and tell the video game industry that their contributions will no longer be enough to continue to put our children at risk.

  16. this reminds me of the case in the 80’s when tipper gore was suing Metal music for the bad Voilent with people and she did not think that Dee snider of twisted sister was that smart well the same with this

    People react to different thing music games ect

    but if these places want free speech for every thing they should allow free speech on there forums to they can not have it both was and let the Familes Govern this on there own , And have people govern them selves on the forums . these games should not be Hypocritics

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