New Mexico Considers Video Game Nanny Tax

Published April 1, 2008

Should video gamers be taxed for playing too much Guitar Hero or bowling on their Nintendo Wii?

Some lawmakers in New Mexico apparently think so, and they’ve introduced a new tax to persuade people to put down their controllers and go outside.

State Rep. Gail Chasey (D-Bernalillo) has introduced in the legislature a new tax measure, House Bill 583, that would force consumers to pay a 1 percent excise tax on purchases of video games, gaming consoles, and TVs. The revenue generated from the game and TV tax would be used to fund a new state educational effort aimed at getting kids out of the house.

True to the aim of the measure, introduced in January, the sponsors have even given the bill the creative title, “The Leave No Child Inside Act.”

Money for Outdoors Programs

The new fund would empower officials at the New Mexico state parks division and public education department to:

  • develop curriculum-based programs for teachers to use on public lands and at other outdoor learning sites for outdoor education initiatives;
  • develop hands-on teaching materials for children for use in outdoor education programs;
  • provide transportation for children to experience outdoor education programs;
  • provide substantial and frequent outdoor experiences for children; and
  • increase outdoor nature-oriented physical activity programs for school-age children.

Reportedly the measure has the strong support of the Sierra Club and other environmental groups thanks to its “get outside more” focus.

Bans Stricken Down

I can certainly sympathize with the underlying intentions of this measure. As a parent of two kids, I find myself mouthing the same lines to my kids that my parents said to me when I was growing up: “Turn off that TV and go outside and play for a while!” There’s certainly something to be said for getting our kids off their duffs and outside to engage in some exercise and real-world exploring.

But a tax on TVs and video games is the wrong way to accomplish that objective.

Any time government officials single out a specific type of speech or expression for unique treatment (or blame, as seems to be the case here), it raises sticky legal issues.

Over the past decade, various courts across America have handed down an unbroken string of victories for the video game industry when they have challenged state or local efforts to regulate game content, such as a November 2006 federal appeals court decision striking down an Illinois law criminalizing the sales of certain types of video games to minors.

In each decision, the judges made it clear that video game content represents constitutionally protected speech.

Taxes Also Stricken Down

Older court cases dealing with other media have likewise made it clear public policy makers are forbidden from using the power to tax in an effort to discriminate against speech or expression they disfavor.

In cases such as Grosjean v. American Press Co. (1936), Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (1983), and Arkansas Writers’ Project, Inc. v. Ragland (1987), the Supreme Court has held as unconstitutional state laws that singled out newspapers or magazines for unique tax burdens.

The New Mexico tax proposal raises similar fairness questions. Why blame only video games for kids not getting enough time outdoors? How about a tax on social-networking Web sites or instant messaging? Many kids are spending almost as much time online right now as they do playing video games.

And what about other types of non-digital games that might keep kids indoors?

My daughter spends a lot of time playing Sudoku puzzles. Perhaps we should tax Sudoku books, chess boards, and even arts and crafts. After all, the goal here is to do whatever it takes to get kids outside, right? Or is it really just to get kids to stop playing video games?

Nanny Taxes

Either way, legislators shouldn’t be using the tax code to play the role of nanny for our kids. It is the responsibility and right of parents to determine how their kids are raised.

Many of us would agree that more outdoor time is a laudable goal. But should the government be using the tax code to accomplish that objective?

The Sierra Club and America’s countless other environmental organizations already have extensive outreach efforts and awareness-building programs funded by private donations. If nature lovers and public-policy makers want to lobby fellow citizens to spend more time in the great outdoors, that’s fine.

But don’t start taxing all the games and electronic equipment in our homes to get us to do so.

Adam Thierer ([email protected]) is senior fellow and director of the Center for Digital Media Freedom at the Progress & Freedom Foundation. An earlier version of this article was published in CNET News. Reprinted with permission.

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New Mexico House Bill 583: