In the two months since the Newtown, Conn., shootings, more than a dozen
bills have been introduced at the state level to address violence in
the media, with most of the proposals focused on videogames, but once
again doubts have been raised that some of the more restrictive measures
would ever survive a constitutional challenge.
Proposed legislation includes bills in New Jersey, Pennsylvania and
Massachusetts to study videogames and the causes of violence; a New York
bill to bar the sale of violent videogames to minors; and a Connecticut
bill to impose a 10% tax on M-rated videogames.
Yet even as parents orgs, lawmakers and President Obama have
singled out the videogame industry, along with the National Rifle Assn.,
the industry is prepared to challenge any restrictions enacted on First
Amendment grounds, given the rather broad Supreme Court majority
opinion in 2011 that struck down a California law barring the sale of
violent videogames to minors.
With that decision in mind, some lawmakers are crafting legislation that they hope will somehow survive judicial scrutiny.
In Connecticut, Rep. Debralee Hovey, a Republican whose district
includes Newtown, last week introduced the bill that taxes the M-rated
games, a proposal she says is modeled after other types of “sin” taxes.
A sin tax on M-rated videogames “will cause people to think about what they are actually purchasing,” she told NBC News.
Her bill would funnel the tax money to the state’s Dept. of
Mental Health and Addiction Services, which would develop public
service announcements and other informational materials “to educate
families on the warning signs of videogame addiction and antisocial
behavior.” Shooter Adam Lanza was said to be an avid player of
videogames, including the hit title “Call of Duty,” in some initial
media reports after the Newtown tragedy, but those details were never
Her legislation seemingly tries to overcome the problem of the
government deeming what’s too violent and what isn’t by placing such
distinctions in the hands of the industry’s self-regulating
Entertainment Software Rating Board, which is a guide for retailers and
parents. A similar piece of legislation was proposed in Missouri, with a
1% tax on games rated Teen, Mature and Adults Only and the proceeds
going to mental health programs and law enforcement.
Such proposals would nevertheless have trouble surviving a court
challenge: Previous efforts to essentially “outsource” the decision
about what is taxed and what isn’t have been found to be
constitutionally suspect, said David Horowitz, executive director of the
Media Coalition, which represents videogame retailers, booksellers,
record and movie producers in free speech challenges. “The government is
giving the job of deciding who should be taxed to a nongovernmental
agency,” he said. “They basically can’t outsource those decision.”
He added that the more the legislation focuses on one type of
media and one type of viewpoint, the more it will be viewed as
“particularly suspect” to free speech concerns.
The prospect of a court challenge doesn’t always stop lawmakers
from enacting legislation, particularly after past mass shootings. But
in the wake of the Supreme Court videogame decision, there seems to be
more mindfulness that options are limited.
Steve Hogan, the mayor of Aurora, Colo., the site of a mass
shooting at a multiplex last summer, suggested banning the sale of
violent videogames or imposing some kind of tax, but he backed off the
idea after the city attorney said that such measures would likely not
survive constitutional challenges.
Adam J. Keigwin, chief of staff to California state Sen. Leland
Yee, a Democrat who authored the state’s 2005 videogame law, said that
they did not tie their legislation to the ESRB ratings because “previous
rulings that the government can’t rely upon a private entity’s ratings
in deciding how to regulate.” Moreover, he said, they had concerns that
the rating system itself was “inherently flawed,” with games rated
“inappropriately,” so “we tried to create our own definition.”
Since then, however, Yee has not sought to recraft his
legislation, mindful of the reality of the court 7-2 decision, and has
focused instead on public service announcements for parents and other
Although Keigwin said that they were very confident of the
scientific correlation between videogame violence and real-life
aggression, Justice Antonin Scalia actually mocked some of the research
that had been done in his majority decision.
Most likely to get passed are proposals that seek to resolve the
conflicting claims about the effect of media violence. Some of the state
proposals to study the effects of videogame violence bear similarities
to ideas advanced by President Obama, who proposed a $10 million Centers
for Disease Control study yet stopped short of taking further action to
regulate media violence. Sen. Jay Rockefeller (D-W. Va.), the chairman
of the Senate Commerce Committee, also has proposed a study, to be
conducted by the National Academy of Sciences.
The videogame industry has defended its ratings system and has
pointed to research showing no link between virtual and real-life
violence, but “we certainly view it that more information and better
information is always beneficial,” Horowitz said.
The concern, he said, is that impartiality be maintained; some of
the legislation being proposed “seems to point to a conclusion prior to
the research being conducted.” He said that the Media Coalition sent a
letter to Massachusetts lawmakers expressing concerns about a proposal
to create commission that will study videogame violence because the plan
also calls for also examining “policy options.”
The constitutional limitations on lawmakers, though, do not
extend to the bully pulpit. In New Jersey, Assemblywoman Alison Littell
McHose, a Republican, last month introduced a measure aimed at media
profiteering from violence. Her bill “urges all responsible television
and film celebrities, together with all entertainment and media
corporations, to publicly pledge to refrain from appearing in, promoting
or profiting from entertainment products that depict the violent use of
handguns, semi-automatic weapons, or ‘assault weapon’ style rifles.”
The measure is a resolution — so it’s voluntary, not required.
Wireimage photo: “Call of Duty 2”