The Volokh Conspiracy

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Free Speech

R.I. Proposal to Tax Violent Video Games

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


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.