A Stitch in Haste

The Christian Science Monitor wants to impose a "sin tax" on violent video games:

A [three percent] excise tax on the sale of violent video games could fund an array of new supports for children. And -- even better -- such a tax could help fully fund existing programs such as Head Start and successful initiatives to help prevent child abuse and neglect.

This wouldn't be the first time that politicians have used so-called "sin taxes" to fill budget gaps, especially in rough economic times. After all, corrective taxes already generate millions of dollars a year by targeting such all-American vices as cigarettes, liquor, and guns.
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With so much violent media fare, why single out video games? Despite growing evidence of the psychological harm of these games, few would claim that they are the sole cause of family or community violence. But in a nation where 92 percent of children grow up playing them regularly, violent video games aid and abet a popular culture that champions even the most extreme brutality...
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How will we know video-game violence when we see it? Conveniently, most video-game makers already comply with a voluntary ratings system that includes descriptors for violence. By making these ratings mandatory, the government could impose a 3 percent federal tax on every violent video game sold. This would not eliminate or even discourage violence, but just 3 cents on every dollar of sales in the $10 billion a year domestic video-game industry could provide the government with millions of additional dollars a year to support American children.

Putting aside the outrageous comparison to cigarettes, alcohol and guns, did you catch the maneuver regarding cause and effect (or more correctly, non-cause and non-effect)? In the same sentence we are told both that there is "growing evidence" that video games "harm" children, and that there are other causes of family and domestic violence. Then, in the very next sentence we learn that 92% of children play video games. Are 92% of children exhibiting real-world violence? Is youth violence any greater now than in the days of Cops and Robbers, Cowboys and Indians, or G.I. Joe? In other words, not only is there no obvious problem, not only is there no clear evidence that video games contribute to the problem if there is one, but there also can never be any such evidence one way or the other, since so many factors are at work.

But heck, tax it anyway, because we can do neat things with the money.

Notice also the slick "no big deal" argument -- it's only three percent, right? Exactly what they said about the first sin taxes. And Social Security. And the federal income tax. A small tax today is rarely a small tax tomorrow. And be sure to note the "no big deal" switch from video game ratings being voluntary to becoming mandatory, complete with a new government bureaucracy to oversee and enforce the ratings, no doubt.

There are two alternative, indeed mutually exclusive, justifications for a "sin tax" -- to curb the "sinful" behavior by making it more expensive (i.e., exploit elastic demand), or, recognizing that the "sinful" behavior will not be curved, extract revenue from it (i.e., exploit inelastic demand). It is not clear which scenario applies to a three-percent video game tax (it's possible that neither scenario applies if the demand for video games is neither particularly elastic nor inelastic).

Therefore, a video-game tax isn't a true "sin tax" at all, but rather a "warm-fuzzy-feeling" vanity tax.

Not good tax policy. Not good child welfare policy. Not good public policy in any sense.

POST SCRIPT: I'm surprised that childhood obesity wasn't somehow injected into the analysis.

(Cross-linked at Outside the Beltway.)

Louisiana has decided that children must be protected from fun:

The law — enrolled as Act 441 — states that sales of video games are prohibited to minors if "The average person, applying contemporary community standards, would find that the video or computer game, taken as a whole, appeals to the minor's morbid interest in violence."
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Rather than define "violent," the bill was carefully crafted to mimic the Miller obscenity test — the gold standard upon which modern anti-obscenity legislation has been crafted.

Of course the whole point of the Miller obscenity test is that it applies to, um, obscenity (i.e., pornography) — and nothing else. There is no reason to suspect that the Supreme Court, especially given its recent Internet-and-children cases, is at all inclined to extend Miller v. California, 413 U.S. 15 (1973), beyond obscenity. These hack Louisiana legislators may be a bit too quick to pat themselves on the back for their cleverness, given that every single federal court that has heard a challenge to video game restrictions has struck down those laws. Every single time.

And besides, if video games can be banned as "too violent," then one wonders whether toy guns will be next, or Nerf missiles, or this.

Put aside the First Amendment concerns, Miller notwithstanding, as summarized here.

This law is still unconstitutionally vague. The law still requires a court, masquerading as an "average person, applying contemporary community standards," to define "violence." So the vagueness problem persists.

What is a "violent" video game? As I blogged previously: what precisely is that supposed to mean? Is my 180 mph Xbox 360 racing game "violent"? If reasonable people cannot easily discern a law's exact proscription, then that law violates due process. (The idea that states could simply rely on Entertainment Software Rating Board ratings is misplaced. First, the ESRB is a private body and not a regulatory agency. Second, It doesn't solve the problem: What is a "Mature" or "Adult" video game? What is "violence," "mild violence" or "intense violence"? What is "gore"? What are "strong lyrics" or a "drug reference"? These are some of the subjective factors that are used to determine ESRB ratings.)

Now repeat that whole exercise, but for the word "morbid."

Want more? Miller also demanded that an "obscene" work, to forfeit First Amendment protection, must also lack "serious literary, artistic, political, or scientific value." Some of the best art I've encountered recently, both visual and musical, has been from my Xbox 360 games. And I've learned scientific concepts too, such as the trajectory of rocket-propelled grenades fired down stairwells and the physics of uphill turbo-drifting in high-speed auto races.

Seriously though, you would think that Louisiana would have more pressing problems right now that crafting warm fuzzy feeling, "Blame Canada" child protection laws to rob kids of their playful amusements.

UPDATE: A federal judge has granted a temporary restraining order preventing the law from taking effect. Typically a judge will not grant such an injunction unless there is a strong likelihood that the law will in fact be deemed unconstitutional. Stay tuned.

This is what I wrote back in June when Louisiana passed a patently unconstitutional ban on the sale of "violent" video games to minors:

Of course the whole point of the Miller obscenity test is that it applies to, um, obscenity (i.e., pornography) — and nothing else. There is no reason to suspect that the Supreme Court, especially given its recent Internet-and-children cases, is at all inclined to extend Miller v. California, 413 U.S. 15 (1973), beyond obscenity. These hack Louisiana legislators may be a bit too quick to pat themselves on the back for their cleverness, given that every single federal court that has heard a challenge to video game restrictions has struck down those laws. Every single time.

Make that "every single time plus one" --

U.S. District Judge James Brady said the state had no right to bar distribution of materials simply because they show violent behavior.

Brady issued an injunction, calling the law an "invasion of First Amendment rights" of producers, retailers and the minors who play the games.

"Depictions of violence are entitled to full constitutional protection," Brady wrote Thursday.

Which invites the question: Were the hack Louisiana legislators and the hack Louisiana governor just incompetent or wilfully insolent when they enacted this law, which any second-year law student could have told them never stood a chance of being upheld. This one just wasn't difficult — and they passed it anyway.

So remind me who are the "activists" here — the politicians who show a complete disregard for the Constitution, or the judges who don't?

More thoughts from ACS Blog.

COPA is back in court:

Salon.com, Nerve.com and other plaintiffs backed by the American Civil Liberties Union are suing over the 1998 Child Online Protection Act. They believe the law could restrict legitimate material they publish online — exposing them to fines or even jail time.
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The law, signed by then-President Clinton, requires adults to use some sort of access code, or perhaps a credit-card number, to view material that may be considered "harmful to children." It would impose a $50,000 fine and six-month prison term on commercial Web site operators that publish such content, which is to be defined by "contemporary community standards."
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The U.S. Supreme Court has twice granted preliminary injunctions, including one in June 2004 in which it ruled 5-4 that the plaintiffs were likely to prevail.

That June 2004 injunction was Ashcroft v. ACLU, 542 U.S. 656 (2004) (also called "Reno II"). Indeed, COPA was an unconstitutional follow-up to the first unconstitutional version of Internet censorship, the Communications Decency Act of 1996, struck down in Reno v. ACLU, 521 U.S. 844 (1997) (also called "Reno I").

So after ten years, two administrations, two censorship laws and numerous lawsuits, the government simply will not capitulate and still refuses to acknowledge several remedial First Amendment principles:

--The government may not censor speech intended for adults merely because children might be exposed to it. Only "the least restrictive means possible" might — might — withstand judicial scrutiny. Butler v. Michigan, 352 U.S. 380 (1957). Accord, Sable Communications v. FCC, 492 U.S. 115 (1989). COPA's mandatory access code regime is hardly "the least restrictive" means possible (content filters are far less restrictive to the general population — as, of course, are parents).

--The "contemporary community standards test" of Miller v. California, 413 U.S. 15 (1973), applies to obscenity, and only to obscenity (and remember that "obscenity" does not mean mere "pornography," but something closer to "the most extreme hard-core pornography"). See also the repeated (and always unsuccessful) attempts to extend Miller to the sale of "violent" video games to minors.

--A law that is so vague that a reasonable person literally has to guess what it means and what conduct it prohibits is "void" as a violation of due process. How much more vague can you get than "harmful to children"?

Politicians and bureaucrats are so intrigued, and terrified, of the Internet that they simply will not accept the notion that it might be in any way protected from regulation. We saw it with the contemptible online gambling ban. We saw it fall victim to the warrantless wiretapping program. We saw it targeted for government monopoly municipal wi-fi proposals. And now we are seeing a desperate, indeed manic, drive to censor it, "for the children."

The Child Online Protection Act, or COPA, is codified as 47 U.S.C. §231.

Fifth time's a charm?

A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material.
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The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age.
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The 1998 law followed Congress' unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.

The decision is pretty much as I predicted. The judge ruled that the Child Online Protection Act is both overinclusive and underinclusive and therefore patently fails the "narrowly tailored" requirement for infringing First Amendment speech. Moreover, the judge found COPA to be unconstitutionally vague and overbroad.

Bottom line: Activist legislators, both in Congress and the states, repeatedly try to "borrow" the obscenity test of Miller v. California, 413 U.S. 15 (1973). But they also repeatedly ignore the pesky little detail that "obscenity" is a very specific legal term of art, best described as "XXX-rated hard-core smut." Speech that is not "XXX-rated hard-core smut" is protected by the First Amendment, whether it is harmful to children or not, and the government must meet the most demanding scrutiny in order to restrict it. Mere nudity, mere foul language, mere violence, even mere sex is not "obscenity" and cannot be casually punished or censored, Miller notwithstanding. Stated differently, it is well-settled law that the government may not restrict adult access to speech simply out of fear that children might see it too.

Meanwhile, this latest in a long string of defeats for the government is also a political defeat, in the sense that conservatives will soon be unable to exploit it as a tool with which to pander to their base. Much like "banning same-sex marriage," "banning Internet indecency" is running out of gas — and hopefully will be fully and finally quashed before the 2008 election.

Assign the duty of protecting kids to parents. Leave the rest of us alone.

The case is ACLU v. Gonzales, No. 98-5591 (E.D. Penn., March 22, 2007) (PDF - 84 pages).

To review: The federal courts, up to and including the Supreme Court, have consistently struck down federal laws attempting to restrict or burden websites in order to "protect children." Even before the Internet, it was well-settled law that government may not restrict access by adults to sexual content merely because children might see or hear it -- see, e.g., Sable Communications v. FCC, 492 U.S. 115 (1989). I reviewed the most recent litigation results here.

Of course, Supreme Court precedents -- and the First Amendment -- mean nothing to activist politicians such as Max Baucus and Mark Pryor:

The senators' bill -- the Cyber Safety For Kids Act -- would require adult Web site operators to include a flag in their Web site which would make it easier for filtering software to block adult material. In addition, the legislation would require Web sites with adult material to have a clean homepage and to have visitors verify their age when they sign onto the Web site.

"Bottom line, we want to keep our kids safe when they're on the Internet," Baucus said. "Parents and teachers shouldn't worry about their kids when they're on the computer at home or in the classroom. This bill will help keep kids safe and give parents peace of mind."

If enacted, the Cyber Safety For Kids Act would be just as unconstitutional as its predecessors, the Communications Decency Act (struck down in Reno v. ACLU, a/k/a "Reno I," 521 U.S. 844 (1997)) and the Child Online Protection Act (remanded in Ashcroft v. ACLU, a/k/a "Reno II," 542 U.S. 656 (2004), and just recently struck down at the trial court level -- ACLU v. Gonzales, No. 98-5591 (E.D. Pa., Mar. 22, 2007)). The analysis is totally unchanged:

--The terms "harmful to minors," "adult material" and "indecent" are unconstitutionally vague. Who decides what is "harmful," "adult" or "indecent"? By what standards? "The Department of Commerce will make it up as it goes along..." is not an acceptable answer.

--Restrictions on speech must not only be narrowly tailored to a compelling government interest (i.e., pass strict scrutiny), but they must also be the "least restrictive alternative." Mandatory tags simply do not qualify, nor do the additional requirements of a "clean" (defined how?) homepage and certainly not the age verification requirement. The lattermost burden was precisely the requirement deemed unduly burdensome in COPA, the law that was just struck down.

--Since the law can only apply to U.S. websites (i.e., is totally useless), it arguably does not even satisfy rational basis review, let alone strict scrutiny.

How many different ways are judges going to have to say the same thing to these activist legislators: The government cannot restrict all adult access to the Internet in order to protect children. Protecting children from the Internet is, and ought to be, the exclusive purview of parents, teachers and librarians, not politicians.

One final, and scary, thought: The bill has been referred to the Senate Commerce Committee, which is populated by such Internet clunkheads as Alaska Senator Ted "Series of Tubes" Stevens. Talk about "indecent"...

More thoughts at Threat Level, techdirt.

As I have noted repeatedly on this blog, every single effort to regulate the sale of video games to minors has (correctly) been struck down by courts. Every single time.

Which of course is not stopping New York's activist governor, Eliot Spitzer from reinventing this broken wheel:

Spitzer said he wants to restrict access to these videos and games by children, similar to motion picture regulations which prohibit youths under 17 from being admitted to R-rated movies without a parent or adult guardian.

Under Spitzer's proposal, retailers who sell violent or degrading videos or video games to children contrary to the rating would be sanctioned.

One more time: the terms "violent" and "degrading" are unconstitutionally vague. Moreover, the proposed framework invariably concocted for these First Amendment infringements -- the "community standards test" of Miller v. California, 413 U.S. 15 (1973), cannot be applied to video games -- which always have some non-prurient merit. Miller applies -- and only applies -- to hard-core, XXX-rated pornography. Any and all attempts to extend it to any other form of speech or expressive conduct is impermissible.

(Via slashdot.)

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Meanwhile, as if Spitzer needed yet another case study:

The act which this court found unconstitutional passed through committees in both the State House and Senate, and to be promptly signed by the Governor.

There are lawyers at each stage of this process. Some of the members of these committees are themselves lawyers. Presumably, they have staff members who are attorneys as well. The State House and Senate certainly have staff members who are attorneys. The governor has additional attorneys -- the executive counsel.

Prior to the passage of the Act there were a number of reported cases from a number of jurisdictions which held similar statutes to be unconstitutional (and in which the defendant was ordered to pay substantial attorney's fees). The Court wonders why nobody objected to the enactment of this statute. In this court's view the taxpayers deserve more from their elected officials.

The state in question is Louisiana -- which had its own recent run-in with an unconstitutional video game restriction. The issue is whether the state, thanks to all its activist politicians, must burden its taxpayers with the attorney fees and court costs of the litigation that resulted in the law being struck down. The answer is "yes" -- $92,000.

The judge's sentiments mirror mine, from August 2006:

Were the hack Louisiana legislators and the hack Louisiana governor just incompetent or wilfully insolent when they enacted this law, which any second-year law student could have told them never stood a chance of being upheld. This one just wasn't difficult -- and they passed it anyway.

The judge is -- his term -- "dumbfounded" that such a patently impermissible law could have been passed. I'm not dumbfounded by such antics. Not anymore.

I wonder how dumbfounded Spitzer will be if he has his activist way, only to be smacked down by the courts. Stay tuned.

(Via techdirt.)

Having learned nothing, absolutely nothing, from the recent "censor the Internet" cases (all losses) or the "regulate video games" cases (all losses), some hack regulators at the FCC, backed by their teat-patrons in Congress, are now targeting "violence" on television:

The Federal Communications Commission has concluded that regulating TV violence is in the public interest, particularly during times when children are likely to be viewers -- typically between 6 a.m. and 10 p.m., FCC sources say.
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The report -- commissioned by members of Congress in 2004 and based on hundreds of comments from parents, industry officials, academic experts and others -- concludes that Congress has the authority to regulate "excessive violence" and to extend its reach for the first time into basic-cable TV channels that consumers pay to receive.

First Amendment experts and television industry executives, however, say that any attempt to regulate TV violence faces high constitutional hurdles -- particularly regarding cable, because consumers choose to buy its programming.

How many times do we need to reinvent this wheel? The terms "excessive" and "violence" are unconstitutionally vague in the context of television programming, just as they are unconstitutionally vague in the context of video games. Moreover, government is simply not permitted under the First Amendment to unreasonably restrict adult access to expressive content -- which unambiguously includes television programming -- merely because children might be exposed to it.

The fact that broadcast frequencies are "publicly owned" is irrelevant: the government may not violate the Constitution on "public" airwaves any more than it can violate it in a "public" courthouse. (and, of course, the FCC is just itching to obtain censorial powers over cable and satellite networks as well, so the "public trust" argument is moot if not schizophrenic.)

Meanwhile, here of course is the real kicker:

[M]any parents don't use V-chip blocking, the technology that Congress in 1996 mandated be built into TV sets to filter programs based on industry-developed ratings -- which in any case are inconsistent, according to a report released last week by the Parents Television Council, an advocacy group that monitors television shows for sexual and violent content.

Cry me a river. First off, the Parents Television Council is a radical social conservative group (headed by one of the most extremist social conservatives ever) that files -- get this -- 99.8% of all "indecency" complaints to the FCC, including a calculated campaign after the Janet Jackson Super Bowl fiasco (but only when they weren't busy demanding that "Will & Grace" be banned for "immoral" homosexual content).

Be sure to process the patently unethical nature of the PTC's intellectual dishonesty: Flood the FCC with baseless and repetitive complaints, then use the rise in complaints as "proof" that "something needs to be done." Or, as the politicians phrase it: Vote early, vote often.

The PTC does not represent, and does not try to represent, "parents," but only radical social conservatives. And, like all radical social conservatives, they lie (including a $3.5 million defamation settlement with World Wrestling Entertainment).

It's quite simple really: There is no "right to have TV babysit your kids." Either use the V-chip, throw the TV out, or -- gasp! -- watch with your kids. Either choose one of those options, or just shut up. Stop being infants and start being parents. Leave the rest of us alone.

Your anal-retentive "outrage" ends where my television set begins.

...this is Manchester Cathedral?

Sony Corp apologized Friday to the Church of England for a violent computer game that features a bloody shootout inside an Anglican cathedral.

The church had demanded withdrawal of the game "Resistance: Fall of Man," which includes a gunbattle between an American soldier and aliens inside a building that resembles Manchester Cathedral in northwest England.
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In its letter, Sony said it did not accept "that there is any connection between contemporary issues in 21st century Manchester and the work of science fiction in which a fictitious 1950s Britain is under attack by aliens."

I've not played the game in question and cannot comment on whether it replicates or even merely resembles Manchester Cathedral (one cannot deny that most cathedrals do look a bit alike), or whether this is just a figment of some Church of England official's imagination.

Whichever is the case, what, exactly, is the big deal?

Heck, just yesterday I blew up a monastery while chasing down a French collaborator priest. And I can't begin to estimate how many Nazis I've gunned down inside churches playing Call of Duty 2 and Call of Duty 3. And it's not like there hasn't been some reality-based bloodshed inside English cathedrals.

I'm sympathetic to clerics and others who are concerned about gun- and gang-related violence. And I certainly hope we never see "Flight Simulator: 9/11." But video games are simply not the problem, and their makers shouldn't be needlessly and baselessly harassed or extorted.

On the heels of the latest victory of the First Amendment over the nanny-state censor wannabes at the FCC comes word of the next skirmish:

Sen. Jay Rockefeller, D-W.Va., said he will push legislation in the coming weeks to limit violent content in the media.

"I fear that graphic violent programming has become so pervasive and has been shown to be so harmful, we are left with no choice but to have the government step in," Rockefeller said at a meeting of the Senate Commerce, Science and Transportation Committee.
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The hearing included a brief video montage of clips of graphic scenes of violence and rape played for the packed committee room and compiled by the Parents Television Council.

First things first: The Parents Television Council, for the uninitiated, is a puny gaggle of professional, obsessive-compulsive, radical-social-conservative malcontents who cannot get it into their central planner brains that:

1. The "right" (a duty actually) to babysit your own children does not translate into a right to babysit me.

2. The means to babysit your own children without babysitting me are already at your disposal. The fact that you are either too lazy or too stupid to figure out how to use the V-chip is not a basis for you to demand censorship.

3. One person complaining 240,000 times is not equivalent to 240,000 people complaining once.

First Amendment precedent is unambiguous on this subject: The government cannot force the media to censor adult content merely because there is a hypothetical possibility that children might watch it. Moreover, the "regulating obscenity" standard of Miller v. California has never, not once, been extended to anything other than hard-core, XXX-smut pornography. All attempts to do so (e.g., "violent" video games) have failed. And rightly so.

Equally unambiguous is that any attempt by Congress, the FCC or the states to impose wishy-washy standards of "indecent," "vulgar" or "violent" in content regulation would be struck down by the courts as unconstitutionally vague. And rightly so.

Indeed, the censor wannabes ought to consider giving it a rest, because the one peg that they have hung their censor hats on for decades — the supposed "scarcity" of broadcast media — is now so hopelessly obsolete that the courts, if pushed, might revisit that premise altogether, and with it the constitutionality of any and all FCC regulation of the airwaves.

Meanwhile, Rockefeller is facing opposition, at the committee level, by (ironically) none other than Ted "Series of Tubes" Stevens. So expect Rockefeller's indignant rantings to go nowhere — for now.

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Meanwhile, another activist legislator, Dianne Feinstein (among others), has "wink-wink, nudge-nudged" that she might "look at" reviving the Fairness Doctrine. Her reason? Conservative talk radio actually has — gasp! — an audience. Yes, that fact scares me too — but not as much as the Fairness Doctrine does.

A few days ago, in another context, I wrote the following:

Note also the lack of any outer bound for this faux-externality theory of tax-to-control policymaking. If every private transaction, by its impact (however minuscule) on supply and demand constitutes an "externality," then what isn't deserving of punitive taxes?

Here's a magnificently sublime example:

An alliance of more than a dozen New Mexico environmental groups will lobby again for legislative approval of a 1 percent sales tax -- or "sin tax" -- on new televisions and video games to fund outdoor education programs.

Such a tax could raise an estimated $4 million a year, according to a legislative study last year. The money would fund programs aimed at teaching students outdoors.
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Some studies in the last five years have linked the increasing amount of time children spend watching television or playing video games to lower academic scores, obesity and increased attention-deficit disorder.

Of course, unless children are actually eating their television sets, there is no proximate relation between television and obesity (or ADHD) -- and certainly not a sufficient connection to warrant a warm-fuzzy-feeling tax on those who neither create nor suffer from the faux externality: an individual with no children, or with underweight children, would pay the tax and receive no benefit.

But tax their TVs anyway. Pretend there is an externality where there isn't one so as to legitimize your (self-serving) proposal. (Remember, the activists proposing this insolent tax are precisely the groups that would benefit from the boondoggles the tax would fund. Environmentalists can have conflicts of interest too, after all.)

Bottom line: This proposal is not a "Pigou tax" -- it is rent seeking, pure and simple. And it's bad policy.

Note also that New Mexico is one of the poorest states in the nation and has a far worse "childhood food insecurity problem" than "childhood obesity problem." Just saying.

Via Junkfood Science, who reminds us that

there is no credible evidence for a new "nature deficit disorder" children are claimed to suffer from, or that getting them outside and teaching them about the environment will eradicate childhood obesity or attention deficit disorder.

As if that mattered to those nanny-staters who would save us from ourselves.