Censorship usually takes the form of the direct suppression of speech, but it seems that U.S. legislators are attempting new means of indirect censorship by using tax reform. Unsurprisingly, violent video games are the scapegoat that the Tax Reform Act of 2014 is attempting to target. While it has been previously held to be unconstitutional to tax violent speech, the proposed act may have found a way to pull this off by offering tax incentives to video game creators who do not make violent games rather than taxing those that do.
The Tax Reform Act of 2014 plans to offer “an improved, permanent R&D tax credit, finally giving American manufacturers the certainty they need to compete against their foreign competition who have long had permanent R&D incentives.” On its face, it sounds like a great tax reform. Giving tax incentives to domestic innovators in order to help them compete with the foreign market — who wouldn’t want to help foster American creators in our tough economy? Unfortunately, tucked away in the proposal’s exceptions is that creators of violent video games wouldn’t qualify for this tax credit. This plan would clearly incentivize creators to invest their time in games that wouldn’t be considered to be violent under this act. So, while it isn’t outright censorship, the plan would still influence which projects video game creators invest their time and resources into. If creators are trying to benefit from this tax credit, it might cause them to stray away from violent video games.
Prior attempts to tax violent video games have been found to be unconstitutional. But under this new plan, the violent games aren’t being taxed, so it isn’t technically a penalty; they are just unable to benefit from the tax credit that their competitors are receiving. Whether this new tactic is constitutional is a question that is up in the air. This act raises other questions as well: How exactly will this act define “violent” video games? What about companies that produce both violent and non-violent games? Will cartoon violence be included or just realistic violence? The list goes on. Right now it seems that there are more questions than answers in regards to this tax plan, so stay tuned!
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Eric Margolis is a 3L at St. John’s Law School who wishes to pursue a career in Entertainment / Intellectual Property law. You can contact him at EricMargolis310@gmail.com! He is also the writer of the comic book, Red Right Hand, which you can find here.