Recently, a lawmaker in Pennsylvania proposed a law to tax the sale of video games rated M or AO by ESRB at 10%. This would be in addition to the sales tax already imposed in Pennsylvania (which I am going to refer to as “PA” because it’s too much to type over and over).

According to GameSpot:

Explaining the bill last year, Quinn [ the proponent of the bill ]  said violent video games might be an element in the rise of school shootings in America. “One factor that may be contributing to the rise in, and intensity of, school violence is the material kids see, and act out, in video games,” he said.

With all due respect to Rep. Quinn (R), this is a dumb solution to that problem.

As the ESRB spelled out in their statement to Variety:

Numerous authorities — including scientists, medical professionals, government agencies, and the US Supreme Court — found that video games do not cause violence. We encourage Pennsylvania legislators to work with us to raise awareness about parental controls and the ESRB video game rating system, which are effective tools to ensure parents maintain control over the video games played in their home.

It doesn’t really matter, though, because the law is almost certainly an unconstitutional restriction on free speech under the First Amendment. Video games are expressive speech, entitled to First Amendment protection.

As previously explained in this post we wrote about the First Amendment:

Where a regulation changes depending on the content of the speech, courts apply “strict scrutiny.” This is a much harder test for the regulation to pass.

Courts will look at whether (a) the restriction serves a compelling government interest (not just important) and (b) is narrowly tailored.

Narrowly tailored, in this context, is more than just “no greater than necessary.” Instead, it must advance the interest of the government, not be overinclusive (regulate more than is required), underinclusive (fail to include all that would be required to accomplish the purpose – which would show the government didn’t care enough about the purpose for it to be “compelling) or unduly burdensome (it must be the least restrictive alternative in order to fulfill the purpose).

Some government interests have been clearly established as compelling: maintaining stability in the political system, ensuring criminals do not profit from crime, protecting the rights of individuals from discrimination, protecting voters from harassment, etc.

Even with a compelling interest, a content-based restriction fails if it is not narrowly tailored.

If the law fails to advance the purpose, it will fail…

If the law is overinclusive, it will fail…

If the law is underinclusive, it will fail…

If the law creates an undue burden, it will fail…

A violent video game tax almost certainly fails to pass this test. Even accepting that a regulation like this serves a compelling government interest in reducing youth violence (which I don’t think is true, given the science), it isn’t narrowly tailored to that purpose.

It is unclear that a tax advances the apparent purpose of discouraging youth from accessing M-rated video games. Will a kid who wants to play Red Dead Redemption 2 (RDR2) really be dissuaded by a $66 price instead of a $60 price? I doubt it.

The PA proposal is overinclusive. It purports to be a tax on violent games, but bases itself on the ESRB’s rating system. An M-rated game might have no violence at all. It could be sexual. It could just include the word “fuck” a lot.

The PA proposal is also underinclusive. It ties the tax to the ESRB rating. Not every game receives an ESRB rating. Only games for which the manufacturer (e.g., Sony), retailer (e.g., Toys R Us – RIP) or another cog in the distribution machine requires rating go through the process. So, the proposal leaves out many violent video games.

I would also argue the PA bill creates an undue burden on retailers and distributors to track and remit the tax based on the ESRB rating (which is not indexed in an easily accessible way) or pay a 150% penalty.

In short, the PA bill is bunk. If it passed, it would be squashed in the courts (unless it reached the Supreme Court and SCOTUS overturned its own precedent – which could happen, but would not, IMO, happen to favor a tax over free speech).

It probably won’t pass, though. Similar bills in Connecticut and Missouri have all failed to pass – probably because a majority of the legislators didn’t want to waste time passing laws that are completely ineffective and unconstitutional. Though a Rhode Island legislator is apparently still plodding along with his equally dumb bill.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on transactions and video games, digital media, entertainment and internet related issues. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.