"This bill would impose a tax on the sale of, or the storage, use, or other consumption of, tangible personal property that is adult material, as defined, in this state at a rate of 25%."
It seems to me the tax would likely be unconstitutional. Content-based taxes on the sale of First-Amendment-protected materials (and recall that the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography) are generally forbidden, see Arkansas Writers' Project v. Ragland (1987).
The backers of the law seem to rely on the Court's "erogenous zoning" cases, which allowed special zoning restrictions on sexually themed entertainment on the grounds that this entertainment causes "secondary effects," in the form of crime by patrons and a decline in neighboring property values. But this law is not a zoning restriction, and would extend to places that have no consumers at all. The Court might be willing to recognize other effects as "secondary," such as the possible harms (e.g., sexually transmitted disease risks, or even mental health risks) to performers. But the law seems to be quite ill-fitted to avoiding or remedying such harms, given that the law isn't at all calibrated to these harms: For instance, the law applies to distribution of porn created outside California, which creates problems that aren't remotely remediable through a tax paid to California authorities.
Moreover, parts of the law's stated rationale -- that pornography "[e]ncourages unsafe sex by consumers," "[o]ften encourages sexually aggressive behavior towards women," and "may negatively influence [children's] developing attitudes towards sexuality and relationships" -- focuses on what the Court has treated as primary effects (the tendency of speech to change people's attitudes, and the behavior that flows from those changes) rather than "secondary effects." See, e.g., United States v. Playboy Entertainment Group, 529 U.S. 803 (2000). I think the "primary effects" / "secondary effects" distinction isn't conceptually sound. But it's pretty clear that these effects can't count, under the Court's precedents, as secondary effects.
The strongest defense of the tax would be that pornography, including constitutionally protected pornography, is different: Though it has some constitutional value, it's of lower value, and may therefore be more broadly restricted. The Court has seemingly adopted this view in some of its "erogenous zoning" cases and broadcast regulation cases.
Nonetheless, the Court has at other times disapproved of this "low-value speech" position; and more recently (for instance, in the Playboy case I cited above) it has generally judged content-based regulations of nonobscene pornography pretty much as it has judged content-based regulations of fully protected speech. Moreover, the erogenous zoning cases stress that they involve land use restrictions, and focus on the harms caused by the physical presence of pornography consumers on the parcel of land involved.
My strong suspicion, then, is that if the law is enacted, both lower courts and -- if it comes to this -- the Supreme Court will ultimately strike this tax down just as they would other content-based taxes.
Does it matter, for legal purposes, whether the state is taxing porn "merely" to remedy its allegedly harmful effects, or whether the state is taxing the porn to prevent its distribution? It seems to me, as a non-lawyer, that the latter would be clearly unconstitutional while the former might or might not be unconstitutional.
"SECTION 1. The Legislature finds and declares all
of the following:
(...)
(b) The in-state production of adult entertainment and adult entertainment merchandise has numerous negative secondary effects on the people of this state. Specifically, the production of adult entertainment and adult entertainment merchandise:
(1) Increases crime at or near production locations."
How's that? Are porn productions open to the public? Are they run by street-level criminals?
" (2) Adversely impacts the mental health of, and leads to increased alcohol and substance abuse by, those involved in the production of adult entertainment and adult entertainment merchandise."
Do they need the state for protection or are they adults responsible for themselves?
" (6) Increases the medical costs of the participants in the production of adult entertainment and adult entertainment
merchandise."
As above. And so on.
"This bill would express the intent of the Legislature that all revenues (...) be transferred to the Adult Entertainment Venue Impact Fund, which would be created by this bill. "
And for good measure, yet another bureaucracy.
It's a pity that often only the legal kinks can derail a such a law, not the stupidity.
You gotta love election year politics.
6201.9. (a) (1) In addition to the taxes imposed by any other provision of this part, to the extent permitted by state or federal law, an excise tax is hereby imposed on the storage, use, or other consumption in this state of qualified tangible personal property purchased from any retailer for storage, use, or other consumption in this state at the rate of 25 percent of the sales price of the
property.
(2) For purposes of this section, "qualified tangible personal property" means any item, including, but not limited to, a book, magazine, periodical, film, videotape, digital image, or digitally or computer-manipulated image, that falls within the recordkeeping requirements of Section 2257 of Title 18 of the United States Code.
Does this mean that every Californian has to report the material in their possession, including what's on their computers as taxable? Are there any legal restrictions such as privacy issues?
That'll make for great tax returns. Seems not to include free downloads, a glaring loophole.
Would it be legal to have differing tax rates on books, magazines, advertising (billboards, in newspapers, on television, etc), textbooks, photocopying services, radio broadcasts, television broadcasts, music, images, paintings, photographs, strippers (we know that erotic dancing is protected by the first amendment, of course) etc etc?
Do different tax rates for these different services exist?
Or are different tax rates for different media (DVDs vs Books vs newspapers) ok, but different tax rates within media (pornographic DVDs vs children's DVDs) not? If the latter, is there any constitional argument for making such a distinction?
Sk
As long as the tax revenue is directed towards something with the word "children" in the title, I'm sure 95% of courts will uphold this law, unfortunately.
On another thought ... why don't industries like the porn industry produce studies that show what logic dictates - that their product does not cause mental damage or higher crime rates? It would be easy to do and would at least serve as a rebuttal to the asinine claims made by people who oppose the industry. The fact that nobody is rebutting the "porn causes cancer" claims gives a bit of credence to them, by default.
" SECTION 1. The Legislature finds and declares all
of the following:
(a) A substantial percentage of adult entertainment and adult
entertainment merchandise is produced in California.
(b) The in-state production of adult entertainment and adult
entertainment merchandise has numerous negative secondary effects on
the people of this state. Specifically, the production of adult
entertainment and adult entertainment merchandise:
(1) Increases crime at or near production locations.
(2) Adversely impacts the mental health of, and leads to increased
alcohol and substance abuse by, those involved in the production of
adult entertainment and adult entertainment merchandise.
(3) Increases the performers' chances of contracting a sexually
transmitted disease.
(4) Encourages unsafe sex by consumers.
(5) Often encourages sexually aggressive behavior towards women.
(6) Increases the medical costs of the participants in the
production of adult entertainment and adult entertainment
merchandise.
(c) The Internet provides the children of this state with easy
access to sexual content, which may negatively influence their
developing attitudes toward sexuality and relationships.
(d) Adult entertainment venues adversely impact the character of
local neighborhoods by, among other things, reducing local property
values, curtailing development, and engendering many types of
criminal activities.
(e) Adult entertainment venues endanger the health, safety, and
welfare of citizens in their vicinity.
(f) These findings are consistent with, and supported by, the
findings of numerous municipalities. For example, when the City of
Los Angeles conducted a comprehensive study of adult entertainment
venues, it concluded that such establishments are associated with
higher rates of prostitution, robbery, assault, and theft in
surrounding communities.
(g) These negative secondary effects, in turn, drain public
resources dedicated to public social service programs, and place a
significant strain on the courts of this state. "
I yield to no one in my contempt for the California legislature, but every single claim made here is correct, and has been verified by unbiased studies from Focus on the Family and elsewhere.
Which is not to say that the law is Constitutional. Indeed, under the current liberal interpretation of the First Amendment (where porn is held to be more valuable than political advocacy - see McCain-Feingold) it probably would be struck down. I merely point out that the findings here are, indeed, findings of fact.
"Sadistic or masochistic abuse"
Now wouldn't that apply some courses you take at University of California colleges?
Like commercial speech?
Now *there* is a tax that would balance California's budget.
As an attorney, I would oppose that tax as an illegitimate burden on my profession.
When people seek to use the law to socially engineer the gender relations that they would prefer, that is politics. The speech targeted by their attacks should be placed on an equal footing as far as the 1st Amendment is concerned. I haven't fully fleshed this out, but I think it's a reasonable idea.
And BTW, there is nothing 'inherently evil' or 'warping' or 'crime causing' about looking at pictures of nekid people Doing the Deed.
Also BTW - the law is totally unenforcable.
"an excise tax is hereby imposed on the storage, use, or other consumption " - WTH does that mean ? You're going to get taxed when you buy it, and then a yearly tax for continuing to own it ( storage ), and a per-use fee when you look at it ? Maybe they could charge by the minute, encouraging more efficient 'use' ? What are they going to do, have a counter on Dad's lower dresser draw to keep track of how many time he pulls out the old 'Bigun's' magazine ? Maybe some spyware on the computer to see how many times you click on 'SheDoesItGood.jpg' ???
Get serious.
Now that's comedy!
Unpopular? Why are sales then large enough to tax?
It's a matter of opinion, I guess. I would prefer unbiased studies myself; FoF's name does not epitomize "unbiased." While I could cede the validity of some of the reasoning, I'd truly be curious as to whether the cited bases were substantively vetted or whether they are the legislative equivalent of mindlessly parroted populist propaganda.
1) Move to a new state. Nevada?
2) Move off-shore. Europe has a big porn industry. Then during the next elecation the D's can campaign on how the R's are now moving all of CA's service related jobs off shore. And the press will love them for it.
But political speech doesn't have the highest level of 1st amendment protection. McCain-Feingold limits political speech immediately before elections. Your proposal would actually reduce the constitutional protections of pornography (ain't contemporary judicial philosophy wunnerful?).
Sk
You're kidding, right? You have to be.
"He", I guess.
He frequently attempts to reproduce with humanoid females, hoping to create offspring which can surpass his own limitations, imposed by the elder gods, and so help free the rest of the great old ones.
I am not sure how many reactionaries are Lovecraft fans, though given HPL's own views, that would be a plausible fan base.
In the gay-parade thread, he was the one who tossed off the line about "government promotion of obscenity" that dominated thereafter.
That plus today plus Slater's evidence = presumed spoofing.
Hmm. I'm not a lawyer, but that's really really stupid. Might the difference be that there's nothing in the Bill of Rights that says the Right of Freedom of Eating Things shall not be infringed?
Legislators 'punish' legal behavior of which they disapprove with 'Sin Taxes'.
Courts commonly call such a punitive procedure a 'fine'. However, legislatures have no judicial power to levy fines, so they make an end-run around the whole judicial concept... and label their fines as special 'taxes'.
Sin Taxes & judicial fines have the same objective — to discourage specific behavior within society. Formal laws indicate what behaviors are unacceptable & punishable. Persons legally accused of unacceptable behavior are firmly entitled to many rights ... like Habeas Corpus and a fair trial — before any punishment is applied by the government.
How convenient for legislators to so easily bypass standard judicial due process... simply punish the wrongdoers and skip all that judicial stuff.
Sin Taxes are essentially "Bills of Attainder", that are supposedly prohibited in America (??)
Nick
---
¹ Tobacco, furniture, electronics, automobiles, gasoline...
Darn Tax-and-Spend Democrats. What do you think they will spend the money on? Sex education?
Yes, there's a significant market for porn. There's also an awful lot of people who recognize that widespread availability of porn may not be an entirely good thing for the society.
My guess is that a lot of you may not be aware of the depravity of some of the materials that are available out there. There was a lot of liberal whining about the federal government's prosecution of obscenity a couple of years ago--but with no awareness (or at least no honest discussion) of the fact that the materials being prosecuted were hardcore porn videos that depict rape and murder and sex with animals.
I really don't think that occasionally seeing hardcore porn is going to do any harm to otherwise emotionally healthy adults. But I have my concerns that it may not be a good thing for kids, and a steady diet it for some adults may not be a good thing. Why? Because it creates very inaccurate expectations and assumptions--especially for kids, who don't have enough real world experience to recognize the absurdity of the world that porn portrays. And especially porn that combines violence and sexual pleasure.
Oddly enough, I've had the same idea about the RKBA; you know, where a gun control advocate piously asks "What sort of message are we sending...." ;^)
You do know that the precise same argument was made in the 19th century on why children--especially girls--shouldn't read novels? So that their expectations and beliefs would be realistic? So that they wouldn't pine for something different and better?
Down with all fiction!--Right?
Anyone here have trouble separating fantasy from reality?
Someone just mentioned that this was once an excuse for not letting children read fiction, but there's a more specific example: romance novels (and manga) can lead to unrealistic expectations specifically about male/female relationships and about sex. And we still let kids buy those.
They were thinking of the Bill of Fare.
Because it creates very inaccurate expectations and assumptions
This is true enough, of porn as well as of much fiction. And I accept the familiar argument that, if good books are improving, then bad books are debilitating.
Happily, the First Amendment has been interpreted along Miltonian-Millian (Millian? can that be right?) lines to the effect that, in a free society, people have to be able to make bad choices so that they can be free to make good ones.
I have no trouble recommending against overconsumption of porn (or romance novels, or violent movies), but it's tiresome to have to distinguish my position from those who want to ban porn altogether.
As with abortion, if we could frame the porn debate on whether it's a good idea rather than whether it should be legal, then I think the opponents of both porn and abortion would enjoy more success.
--Goodness, that turned into a bit of a rant, didn't it? Back to my day job now ....
This an excellent point, but I think that taxing is an imperfect solution. Taxing porn will just make existing porn more expensive, but won't promote new more realistic porn.
What we need is for the FCC to step in and mandate "equal time" for realistic porn (you know, for kids). Then the government can start a massive public service campaign telling kids that new realistic porn is cool and old unrealistic porn is "totally wack."
"Good Lord, you're not suggesting we should tax... thingy?"
Most lobbyists give money to politicians. What could porn stars give?
Nonetheless, the Supreme Court has conjured a middle tier into existence, declaring it protected by the First Amendment and yet not protected, in a state that is a kind of (forgive the phrase) Schroedinger's pussy.
The boundaries aren't clear. Perhaps the Supreme Court will limit the legal effects of middle-tier status to matters (like zoning) that it has already clearly decided, as Professor Volokh is arguing. But then again, maybe it will extend them to new areas. There's a lot of money to be made if it will, so why not roll the dice and give it a shot?
If California succeeds, pornography would join gambling, alcohol, tobacco, and parking as activities that states have been prone to regulate, not for purposes of protecting some conception of public welfare, but simply to make money.
(1) Increases crime at or near production locations.
Is the crime rate directly correlated with the building of one of these production buildings? Moreover, I would suspect that the productions don't typically happen in "nicer" areas because the residents of those areas would likely cause a big ruckus, because they don't want that type of building in their community. Therefore, the industry locations are pressured to relocate, to not so favorable areas.
(2) Adversely impacts the mental health of, and leads to increased
alcohol and substance abuse by, those involved in the production of
adult entertainment and adult entertainment merchandise.
This is certainly true, but to actually tax people based on personal choice is ridiculous. They didn't necessarily choose to drink or use drugs more often because of entering the industry, and even if they did, its hardly reason enough for this tax, its a matter of them choosing to do so!
(3) Increases the performers' chances of contracting a sexually
transmitted disease.
Yes, and being a cop increases chances of getting shot, being a computer programmer increases the chances of getting carpel tunnel and worse eyesight. These are all issues that are brought up BEFORE people make the choice to enter their respective careers.
(4) Encourages unsafe sex by consumers.
Common sense has to be completely thrown out the window if anyone takes serious sexual tips from a porno. Also, what would a higher tax do to prevent this? People will still buy it, or at least, this might lead to a higher amount of downloading illegally, the higher taxation is not going to magically remove this so called "problem".
(5) Often encourages sexually aggressive behavior towards women.
Possible, but it might disregard the fact that the women voluntarily took part in the act, and probably would not do half the things that occurred in the film if it were not for financial gain. Furthermore, this rule would not apply to homosexual porn, which there is a good amount of. Are those types of films exempt from this tax based on this one?
(6) Increases the medical costs of the participants in the
production of adult entertainment and adult entertainment
merchandise.
Yes it certainly does, but its a matter of choice within the people in the industry. When one chooses a career, they are generally aware of the costs involved, and the negative results. Taxpayers should not be burdened because someone who voluntarily chose to be in porn might or might not have to pay higher medical costs. Its something that comes with the profession.
(c) The Internet provides the children of this state with easy
access to sexual content, which may negatively influence their
developing attitudes toward sexuality and relationships.
This stops nothing, kids aren't stupid. They will find ways, and have found ways. We all were kids at one point, and many of us were fairly devious when it came to matters such as this. A rule like this is meant to be broken.
(d) Adult entertainment venues adversely impact the character of
local neighborhoods by, among other things, reducing local property
values, curtailing development, and engendering many types of
criminal activities.
Probably, but thats only because they have to move to areas which aren't as nice. I doubt there would be a store of this nature in a country club community, because there isn't a market for one, and the residents of that community would make a fuss.
(e) Adult entertainment venues endanger the health, safety, and
welfare of citizens in their vicinity.
How? Based on the crime rates? That might be already a problem.
(f) These findings are consistent with, and supported by, the
findings of numerous municipalities. For example, when the City of
Los Angeles conducted a comprehensive study of adult entertainment
venues, it concluded that such establishments are associated with
higher rates of prostitution, robbery, assault, and theft in
surrounding communities.
I'm sure that all these municipalities would love getting more tax revenue from something absolutely ridiculous. Who wouldn't?
(g) These negative secondary effects, in turn, drain public
resources dedicated to public social service programs, and place a
significant strain on the courts of this state.
Programs like this are what strain the courts, programs and funding of this state.
When the National Endowment for the Arts gave Karen Finley a grant for her Performance Art piece, "Chocolate", porn haters talked about the need to keep the N.E.A. from funding Pornography. They claimed porn was very succesful on its own commercially and that it would flurish always, as no one was trying to stop it, except just not to use goverment funds by an endowment to fund it.
They came up with the voluntary ratings for movies. They promised the ratings would be only so parents could decide better, what to allow their children to see, that the ratings would never be codified into law. Yet those ratings have evolved into contrivances like child porn laws and now this tax scheme.
And what is porn? What on earth manner of compliance surveillance have they in mind to tax use? Cameras in the bedroom?
This would not be a big deal, except that our current crop of judges tend to temporize and frequently simply carve vast First Amendment exceptions out of whole cloth.
A pornographic movie set is just as much a workplace as any other movie set, or a newspaper printing press. High-risk activity goes on there. OSHA has every right to inspect the set and collect fees for monitoring high-risk activity.
Easy, see?
Certainly, many children do. This is one of the reasons that soaking children in violent entertainment also isn't a good idea.
Although I suppose that you will come up with all sorts of good reasons why small children should be watching the Hannibal Lector movies, too.
This tax scheme (from your friends the Democrats) applies to movies that, to my knowledge, don't even bother to apply for an NC-17 rating.
Watching liberals lose it is so interesting.
When are you are going to face that a lot of people who aren't particularly conservative aren't thrilled with porn?
How can one liberal be so profoundly ignorant of the history of this stuff?
If you want to argue that porn shouldn't be taxed because there's no specific governmental expenditure associated with the consumption of porn, you would have a strong argument. I think that a special tax like this requires clear evidence of a special expenditure tied to the commodity or service. Taxing prostitution to fund STD clinics would make sense. Taxing alcohol to fund alcohol treatment would make sense. The connection between porn and specific governmental programs is rather tenuous.
alcohol and substance abuse by, those involved in the production of
adult entertainment and adult entertainment merchandise.
This is certainly true...
Is it? Alcohol and substance abuse may as well lead to increased involvement in the production of pornography. Anybody have any, er, hard data?
Really, it's adults who have greater difficulty telling fantasy from reality.
The children of my acquaintance know that dragons and unicorns, and other creatures of their storybooks, do not really exist. ("It's just a story! It's not real!") Likewise, while they may tell wild tales of imaginary dangers, if they are taught well they react to real threats in sensible ways according to the teaching they have received and their own level of ability.
However, many adults fail to make the more important realization that the real world is not driven by the forces of drama and storytelling. The story of your life is not a drama with you as the protagonist. History is not the epic tale of the ascent of mankind to the triumph represented by your race or nation. There are no good guys or bad guys in the real world; there are good and bad actions, though, and a bad action is bad even if it's you or someone you like who does it.
Gunshots kill the just and the unjust with equal facility. Love isn't magic; it's work -- people live "happily ever after" through attentiveness and effort, not blessings from above. Stuff happens when you're not looking -- and most of the details are not essential: just because someone has a shotgun above their fireplace does not mean it will be fired by the end of the play.
People grow and change according to rules of psychology, not rules of character development. They form relationships because that's what people do, not because each development advances the plot. There are remarkably few plot twists, or rather, only as many as you seek out and more or less deliberately create. And there is no overarching plan that makes it all make sense.
Oh, and most real women don't like money shots.
Or hold this forte for yet another long career? Yeah, i think I'll maintain my own arguments, tyvm.
Hard data? Why that's double entendre.
Nick