In a meeting with religious leaders last week, Vice President Joe Biden stated that there is “no legal reason” that the government couldn’t impose extra taxes on entertainment media that depict violence such as movies and video games. Actually, there is a very good reason violent media can’t be taxed: the First Amendment.
In a post at TechDirt, Tim Cushing analyzes Biden’s response to an idea floated by Rev. Franklin Graham, who proposed that revenues raised from taxing violent media could be funneled to a fund for victims of violence. As Cushing points out, this very premise is flawed as it implies a connection between violent media and real-world violence that has never been proved. Moreover, the application of such a tax would be a logistical nightmare:
[W]ho decides what amount of violence is non-taxable and where does that line get crossed? If it’s a PG-13 film, does it go untaxed? Does any M-rated game immediately have the tax applied? Will game developers and filmmakers explore other paths, like explicit sexuality, simply because violence gets taxed and sex doesn’t? Or will they, more likely, adapt to the new chilling effect and produce stunted, sanitized output?
In fact, authorities would need to look even beyond MPAA and ESRB ratings — which do not carry the force of law — as there are myriad examples of movies and games receiving R or M ratings for sexuality or even language alone. And what of works that are undeniably gory but exist at least in part to comment on the culture of violence, such as The Simpsons’ Itchy & Scratchy and every Quentin Tarantino movie ever made?
But the analysis need not proceed even that far, because a tax that applies to some works and not others in the same format is quite simply unconstitutional. This has been established by two Supreme Court cases dealing with taxation of newspapers, Grosjean v. American Press Co., Inc. and Minneapolis Star v. Minnesota Comm’r. In the former case, despotic Louisiana Sen. Huey Long concocted a scheme to tax the advertisements only in those newspapers that had a circulation of more than 200,000 within the state — which also happened to be the big-city papers that had most criticized Long in the past. In 1936, the Supreme Court ruled that such differential taxation was an undue prior constraint on the freedom of the press. The decision was reaffirmed with the second case in 1983, when the state of Minnesota levied a use tax on paper and ink consumed by newspapers, but exempted the first $100,000 worth. Again this had the effect of disproportionately punishing larger papers, including plaintiffs Minneapolis Star and Tribune (since merged to form the Star-Tribune), which were shouldering 60% of the entire tax burden. And again the Court found that the state could not tax some newspapers while exempting others:
A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected….[D]ifferential treatment…suggests that the goal of the regulation is not unrelated to suppression of expression, and such a goal is presumptively unconstitutional.
To better understand how these precedents would apply to entertainment media, one need only look to previous failed attempts to tax pornographic materials. In a 2005 Wired article which cites Grosjean v. American Press, California Western School of Law professor Marilyn Ireland stated that “[y]ou cannot have that [porn] tax any more than you can have a special tax, on, for example, Methodists.” The issue arose again in 2009, when USA Today paraphrased UCLA professor Eugene Volokh as saying that “you can’t tax Playboy, for instance, unless you also hit Newsweek and National Geographic.” Obviously the same would apply to violent content, and it’s more than likely that Vice President Biden is aware of that — especially seeing as he’s refused to comment since the meeting, as Cushing points out. In short, a tax on fictional violence will not be happening anytime soon.
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Maren Williams is a reference librarian who enjoys free speech and rescue dogs.