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New Mexico's video game nanny tax

PFF's Adam Thierer says the state's decision is a troubling harbinger for makers and users of electronic game technologies.

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 encourage you to put down your controller and go outside.

The New Mexico legislature has introduced a new tax measure, HB583, 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 more. True to the aim of the measure, they have even given the bill the creative title, "The Leave No Child Inside Act."

Specifically, the new fund would empower officials at the New Mexico states parks division and public education department to do the following:

• 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.

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

I can certainly sympathize with the underlying intentions of this measure. As a parent of two kids, I already 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 TV and video game tax 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. In each decision, the judges made it clear that video game content represents constitutionally protected speech.

Older court cases dealing with other media have also made it clear that public-policy makers are forbidden from using the power to tax in an effort to discriminate against speech or expression that 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 just blame 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, for example. 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?

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.