The War on Porn Regular Updates about the Assault on The Adult Industry
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Back in the early 1970s, the Minnesota legislature altered the state’s sales tax such that it created a “use tax” on the cost of paper and ink, while exempting the first $100,000 worth of such materials in any calendar year.
In part due to that exemption, the use tax clearly was directed at the state’s larger periodicals, including the Minneapolis Star Tribune. The Star Tribune wasn’t simply one of eleven publications incurring tax liability under the statute in the early 70s; of the $893,355 in total tax revenue collected under the statute in 1974, the Star Tribune paid $608,634 – roughly two-thirds of the total revenue collected.
The Star Tribune sued the Minnesota Commissioner of Revenue, alleging that the state’s tax scheme violated the First Amendment. The resulting case, Minneapolis Star & Tribune Co v. Minnesota Commissioner of Revenue, was decided by the U.S. Supreme Court in 1983.
The Supreme Court ruled in favor of the newspaper, holding that the “main interest asserted by Minnesota in this case is the raising of revenue” and that while this interest was “critical to any government,” it wasn’t, by itself, enough for the law to survive scrutiny under the First Amendment.
“Standing alone, however, it cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available,” Justice Sandra Day O’Connor wrote for the court, “the State could raise the revenue by taxing businesses generally, avoiding the censorial threat implicit in a tax that singles out the press.”
I’ve been thinking a lot about the Star Tribune case since first reading about SB 73, a new bill in Utah proposed by State Senator Calvin R. Musselman. There was a time when the 1983 decision would have given me confidence that Musselman’s bill wouldn’t survive court scrutiny, assuming it becomes law in the state. After the Supreme Court’s decision last summer in Free Speech Coalition v. Paxton, however, I’m a lot less certain.
Granted, there’s not a perfect analogy between the Minnesota law at issue in the Star Tribune case and the bill proposed in Utah, nor between the 1983 case and the Paxton case. But what has me feeling uneasy is the readiness of the current Supreme Court to throw aside precedent and impose a lower standard of review in cases where material alleged to be “harmful to minors” is at issue.
It’s not just reasonably well-informed laymen like me who are uncertain, either. In recent adult industry media coverageabout the Utah bill, litigators who are experts in the First Amendment were divided in their analysis, as well.
Speaking to XBIZ, attorney Larry Walters of FirstAmendment.com pointed out that in one recent case, “the Georgia Supreme Court upheld a 1% gross revenue tax on adult entertainment establishments in the face of a constitutional challenge.”
“But the court reasoned that the tax was justified not based on the entertainment content produced by the businesses, but on the alleged ‘adverse secondary effects’ of physical adult establishments, such as prostitution and child exploitation,” Walters noted, adding that there are “no recognized adverse secondary effects of online adult entertainment businesses. Accordingly, the Utah bill, if adopted, could be subject to a constitutional challenge as a violation of the First Amendment.”
Walters also observed that the Utah bill also could have trouble for it looming in the form of the Dormant Commerce Clause, which limits states’ ability to pass legislation that discriminates against of unreasonably burdens interstate commerce.
Walters’ colleague Corey Silverstein, commenting for the same article, was less optimistic.
“After the state-by-state pummeling of AV laws, this is only the beginning of another new trend of anti-adult and anti-free-speech laws that the entire industry needs to prepare for,” Silverstein said, also predicting that a challenge to the Utah bill, should it become law, would be unlikely to succeed.
One thing is certain: The Utah “porn tax” bill won’t be the end of state governments seeking to impose further regulatory burdens on the adult entertainment industry. Emboldened by their success in establishing age verification requirements, state legislatures across the country can be relied upon to cook up additional hurdles to put in the path of adult businesses, performers, content creators and anyone else engaged in expressing themselves through sexually explicit materials.
