Let me set the stage before I go into the question:
I’m required to write a paper for one of my classes, 20-30 pages in length, whereby I must propose a law that’s intended to foster public policy, and discuss how I would go about enforcing it. Since I attend a pretty religious/conservative school, I figure my safest bet is to write something in line with the school’s mission in order to appease the professor. (Read: I can’t really be faulted for this particular topic.)
So here’s what I’m thinking, and I’d like to hear some Doper legal/moral/whatever debate on it. I’m thinking I should propose a pornography tax. Assuming that pornography per se is something bad for public policy purposes, then why not tax it either on a state or federal level? The advantage here would be: 1) the tax would serve as a penalty on either the seller or the recipient, and would serve as a deterrent, and 2) there’s money to be had. The porn industry is huge, and I’d wager that even a minor tax on it would nicely finance that war with Iraq.
The big thing I realize I’d have to investigate is the First Amendment limitations on Congress’ taxation power. (We didn’t study the tax power much in my constitutional law class, and I haven’t done any first amendment, so I simply don’t know what the limits are.) My guess would be that a minor tax would be ok as long as it’s not so large so as to serve as an indirect censorship.
The other difficulty would be in smoothing out what “pornography” is for such a law: you’re inevitably going to have people complain that the law would be overbroad (i.e., when does the law start to run into art?). My initial response would be that this is for the courts to decide, but again, I’d need to research further.
So, let me toss out to the Doper community: can governments impose a porno tax without colliding with the first Amendment? SHOULD they? Am I nuts? What problems or impracticalities would result?
If you want to be a cut above the other students, you might check out the notion of unintended consequences and its possible influence on your plans. You can find out a lot about it as it applies to law, economics, and other social disciplines by simply Googling the phrase.
As you have noted defining pornography will be the stumbling block. As you know, “obscenity” is illegal - but subject to legal definition. Unfortunately you will not raise much in taxes by taxing obscenity.
“Pornography,” though legal (mostly), is almost impossible to define. Make it “nudity” and you subject Renaissance art to the tax. If it is “sexually related” then academia will be taxed. What about romance novels? OK, really dirty romance novels?
So, yes, overbreadth is one argument. One could argue that it is void for vagueness in that nobody can reasonably know that they are subject to the tax.
Didn’t pornography producers years ago, protested a proposed extra tax to their “craft”? I cannot find what happened to that. (Maybe it was only in California? :dubious: )
Consider that when any of the materials are sold a sales tax is paid on them. Technicaly they are already taxed. As other people have pointed out, there is also the problem of being overly broad in the laws scope. A related alternative could be a specific tax on “sex toys” , because no matter what euphamism they use a dildo is still a dildo.
Then again you could also propose that people who work where these types of items are sold have some kind of special training. Maybe in the prevention of STD’s or in relationship counceling. It wont realy discourage buisess, but it will help the public intrest by makeing the public better informed. Well , in theory anyway.
Well, if we could get past the defining of pornography, then I wouldn’t see a reason why we shouldn’t. After all, we make smokers, alcohol drinkers, and motorist pay extra taxes. I’d be happy to pay my share, lord knows it could fund a city park or something.
But as someone pointed out above, pornography is very hard to legally define.
How about a tax on any political dissident naterial?
A tax on any religous “heresies”? (ie, anything but Conservative Protestant Christianity).
However, your assumption (that pornography is somehow “bad for public policy”) is incorrect. The original study, done during the Nixon years- concluded it wasn’t. Of course, several more studies have been ordered, and finally the Religous Right got a panel & a result they wanted. :rolleyes:
Then, of course- what IS “pornography”? “Cheerleader Stewardesses do Dogs”? Lady Chatterly’s Lover? Marquis de Sade? Portnoys Complaint? Some “bodice ripper romance” like “Ravished in Ruritania”? Where do we draw the line- and WHO GETS TO DO IT?
How is intent determined? Would you tax the producer rather than the consumer? Or both? “That’s not what we intended. No, no, no, it’s just a picture of a horse, that’s all.”
This is certainly a novel idea. If we can tax alcohol and cigarettes, why not porn? Well, for starters, has there been any definitive link between pornography and any social ill? With alcohol and cigarettes we can say your going to get drunk, kill brain cells, get cancer, etc. because cause-and-effect is established. I don’t believe this is so with pornography.
I don’t see how you wouldn’t run into First Amendment issues. You’re asking to add special tax an idea whose definition is in the eye of the beholder, and an idea that historically has been protected by the courts. If a tax keep people from an idea, it is censorship.
My wife thinks Bud Light commercials and my “Muscle & Fitness” magazines are pornographic. You gonna tax those?
Res: Intriguing topic, but I would imagine, a bit more cut and dried than one would think. I think the quick answer to your question would be “No, the government cannot tax pornography without colliding with the First Amendment.” A tax on pornography would clearly be a content based regulation, and thus subject to strict scrutiny. Thus, your assumption that pornography is something “bad” would come under very close scrutiny, and, in most of the pornography cases that come before SCOTUS, they look askance at any regulations.
I feel confident saying there is no way a pornography tax would fly before the Supreme Court. You can take a look at Minneapolis Star and Tribune Co. v. Minnesota Com’r of Revenue 103 S.Ct. 1365 U.S.,1983. for a general overview of taxation of speech, and a more specific look at Cinamerica Theatres, L.P. v. City of Boulder
50 P.3d 921 Colo.App.,2002, which dealt with amusement taxation.
Even if you get past the strict scrutiny test, as many of others have pointed out, you’d have a hella problem defining pornography. And the Courts wouldn’t be the ones to sort it out, you’d have to do it in the statute.
There would also be a policy issue regarding the taxation of pornongraphy, as a Judge in Canada pointed out: “This reasoning is correct because imposing heavy taxes on pornography, or requiring special licenses for its distribution sends the message that harms to women will be tolerated as long as the user pays. Government would be complicit in the pornography trade and even become a participant in it if it collected taxes or issued licenses.”
Tough sell, but you’d definitely get 20-30 pages out of it. However, it’s just unworkable.
Such a tax would almost certainly be considered a content-based restriction on free speech, and thus would be bitchslapped by the federal courts on first amendment grounds. Hamlet is exactly right in his analysis – the law would have to survive strict scrutiny review, which is effectively unsurvivable.
I would think your only chance of getting such a law to pass Constitutional muster would be to manufacture some sort of “social ill” that is created by pornography, and then pretend that the revenue created by the tax will go towards “pornography prevention” programs, and other things that will mitigate these ills. That’s what they do with cigarettes and alcohol, and what has been proposed we do with unhealthy foods.
I would wager that you could probably get away with a pretty tenuous link between porn and societal harm, though. Republicans, in general, are pretty hostile to porn. You also have the feminist movement, which a large segment of which views porn as a catalyst for rape. Thus, you wouldn’t need to woo too many more until a sufficient majority was reached that could vote such a law into existence. And the funds wouldn’t even really need to go towards porn-prevention - heck, you could even feed the proceeds back into the porn industry, as has been done with tobacco tax funds (going into the tobacco industry, not into porn).
That being said, I think sin taxes in general are a horrid creation, and I would strongly oppose such a porn tax.
Jeff
If you’re looking for a topic still within this realm, but one that may not be so obvious, is making a change from pornography to obscenity. Some states, Iowa for example, have a specific law that requires illegal drugs like marijuana and cocaine, to have a tax stamp on them (i/e cigarettes). If they don’t, they’ll have an additional criminal charge. You could buy the tax stamps from the state.
If you proposed a tax on obscenity, you may be able to avoid some of the problems with the First Amendment because obscenity is not protected under the First Amendment. You’d still have the problem with definitions, but obscenity statutes have survived those challenges too.
To appease those of you with overbreadth concerns, I suppose the legislative history of the statute would have to make it pretty clear on what’s supposed to be taxed and what isn’t. How I’d lay that out, I’m not sure, but it might list a series of examples. Michaelangelo’s “David” is art. “Debbie does Dallas” is porn. I’d hope there would be a degree of obviousness here. The law should, of course, make clear what it’s targeting: as Biohazard said, erotica.
What I’ll probably do is research various cases and statutes to see how “pornography” has been defined. I figure someone out there has done it better than I could.
As to an earlier question, “who gets to decide what’s porn?,” obviously the answer is going to have to be the courts. It would be of help to them if the statute and its history were as clear as possible on what’s intended to be covered, although I’d like to leave a little ambiguity for novel cases and court discretion. If the statute did run into overbreadth, I’d hope the court would either void it or just rule “it wasn’t meant to apply in this situation.”
Excellent point, Manduck.
Also, what are we going to consider pornographic? Will Victoria’s Secret and Ambercrombie and Fitch catalogs fit the description?
How about magazines like Cosmopolitan or Maxim?
I don’t think a porn tax is going to go anywhere, when even the Supreme Court can’t define it.
