Oklahoma House Bill 2696 would impose a 1% excise tax on “violent video games.” This tax is in addition to any existing general state or local sales tax imposed on goods and services that include video games.
“Violent video games” are defined as any video game that received a Teen, Mature or Adults Only rating from the Entertainment Software Rating Board, which is a private organization that rates most of the video games sold or rented in the United States.
The bill died in the House Committee on Appropriations and Budget.
It is now definitely established that video games are speech protected by the First Amendment. Last summer, the Supreme Court ruled in Brown v. Entertainment Merchants Association that video games are entitled to constitutional protection the same as books, newspapers, movies or music. The Court struck down a California law that banned minors from buying or renting video games with certain violent imagery.
Given that video games are protected speech, this tax would be imposed based on the content of the speech. The tax is triggered by the sale or rental of video games with specific types of content that merit certain ratings. The Supreme Court has repeatedly held that a content-based restriction or penalty on speech is presumptively invalid. It struck down legislation to tax or otherwise financially punish First Amendment-protected speech based on its content.
The state cannot also place special burdens on retailers of First Amendment-protected material. The Supreme Court has said that the government can neither require a license of speakers of protected communication that is not generally imposed, or levy a business tax specifically on the dissemination of protected speech that is not generally levied.
The bill also delegates to the ESRB the power to decide which video games will be subject to this tax and which video games will be exempt. This delegation of authority to a private entity likely violates the First Amendment. It violates the due process rights of those subject to the tax. There is a substantial body of case law that says a government cannot enforce nor adapt a voluntary rating system for First Amendment-protected content. It is especially so when the enforcement of the rating system is done to restrict or punish speech based on its content. Courts have struck down laws that would have enforced the motion picture rating system or financially punished a movie that carried a specific rating designation.
- On February 6, 2012, the bill was introduced  and referred to the House Committee on Appropriations and Budget.
- On February 29, 2012, Media Coalition submitted a memo in opposition  to the members of the committee, explaining the constitutional issues with the bill.
- The legislature adjourned its 2012 session. The bill is dead.