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By now you’re familiar with all the dangers: weight gain, desensitization, feelings of estrangement, and the wholesale degradation of America’s youth.
I’m not talking about illicit drugs. I’m talking about—users beware!—violent video games. In Oklahoma, State Representative William Fourkiller, a Democrat, is waging war against gory games. Last week, he introduced a bill (RTF) to impose a 1% sales tax on video games that receive a Teen, Mature, or Adult Only rating from the Entertainment Software Rating Board. The tax’s revenue would help fund programs to fight childhood obesity and bullying.
This isn’t the first effort from a Southwestern state to regulate violent games. Policymakers in New Mexico introduced a similar bill in 2008, but the measure failed to receive a majority vote in the state legislature. Many readers will also remember California Civil Code § 1746, the California law that banned sale of violent games to minors. In Brown v. Entertainment Merchants Association, the Supreme Court found that law unconstitutional under the First Amendment of the United States Constitution.
Fourkiller’s bill is probably unconstitutional, too. Because Brown held that the First Amendment’s Free Speech Clause affords full protection to video games, content-based restrictions on video games must satisfy strict scrutiny. This means the law “must be necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”
For the same reasons California failed to satisfy strict scrutiny in Brown, Oklahoma probably cannot pass constitutional muster. Scientific evidence has failed to establish a link between violent video games and harm to minors. The measure is also probably overinclusive because it would reach Teen-rated games such as Ultimate Card Games, which have received a higher rating because they simulate gambling. The Supreme Court has also rejected revenue concerns as a compelling state interest for taxes that discriminate on the basis of protected content.
One would hope, however, that Oklahoma legislators will reject Fourkiller’s bill as bad policy before private parties have to expend resources challenging a law that appears to violate clear federal law.
– Mike Walker
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