WHAT YEAR IS IT?: In order to make up a $200 million shortfall in its budget, Alabama’s attempt to enact a sin tax on pornography failed to pass the budget.
By Randal John Meyer | Watchdog Arena
Thanks to the state Senate, Alabama was able to avoid an anticipated First Amendment lawsuit over its budget proposal, which included a tax on pornography.
In order to make up a $200 million shortfall, Alabama wanted to raise taxes with “sin taxes.” On Sept. 15, the porn tax failed to pass the Senate, during a budget vote in which the chamber approved two budget reform measures while also raising taxes by roughly $86 million annually.
Admittedly, there is nothing wrong with ensuring that tax revenues and government expenditures line up—sound budgets are good policy. But this new proposed tax on porn was clearly unconstitutional. .
The Alabama House Ways and Means Committee approved of a 40 percent state excise tax on the sale of sexually explicit material and an additional 10 percent excise tax with the benefit running to counties and municipalities.
The First Amendment protects artistic expression, even if pornographic. Alabama, by taxing the specific category of pornographic material, is directly engaging in “content-based discrimination,” something the Supreme Court does not allow. Indeed, in the 1972 case Police Department v. Mosely, the Court noted that “above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Thus, regulations that treat a category of content differently than other categories will be held unconstitutional unless it passes the exacting legal test of strict scrutiny.
Strict scrutiny requires a compelling governmental interest that is narrowly tailored to be the least restrictive means of accomplishing that interest. Absent those factors, a law will be deemed unconstitutional.
Indeed, the specific issue of pornography has already come before the Court. In United States v. Playboy Entertainment Group (2000), the Court struck down restrictions in the Communications Decency Act that treated pornography differently than other forms of expression. Alabama’s statute would fare no better.
Alabama’s sole interest in the tax was revenue generation. Revenue generation as a governmental interest is not “compelling” enough to overcome a burden on First Amendment expression. American history shows that revenue generation is not a compelling interest; well before the Constitution was written, the 1765 Stamp Act imposed a tax on the expression of ideas in papers and pamphlets. The polity did not treat it favorably.
Moreover, the language of the bill as it currently stands is a far cry from being “narrowly tailored” or the “least restrictive means” of accomplishing revenue generation. The tax is extensive enough in its wording to include “any . . . matter . . . depicting . . . sexual conduct.” The tax is broad enough to cover not only Fifty Shades of Gray, but any other book depicting sex—The Scarlett Letter, Catcher in the Rye, the Song of Ice and Fire series, and even the Bible certainly are “matter . . . depicting . . . sexual conduct.” A porn tax that is tailored to be coextensive with popular fiction and religious treatises does not pass constitutional muster.
Both California and Washington’s Legislatures saw porn tax proposals in the past 15 years, yet neither state enacted one—likely because court challenges would ensue.
Alabama should focus on not spending more than its existing revenues allow, rather than risking taxpayer dollars on a potential lawsuit.
This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.
