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Proposed Porn Tax in California:

"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.

corneille1640 (mail):
Dear Mr. Volokh (or whoever is reading):

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.
5.27.2008 8:29am
alkali (mail):
One wonders how the proponents intend to tax the "use, or other consumption of" pornographic material.
5.27.2008 8:50am
RainerK:
Despite its constitutionality or lack thereof, yet another great idea by the lawmakers.

"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.
5.27.2008 9:10am
shawn-non-anonymous:
How does one tax the online consumption of porn? What if that online porn is hosted on a server in another state or nation?

You gotta love election year politics.
5.27.2008 9:18am
RainerK:
Another concern. After going through dealing with retailers and producers, there is the following section:

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.
5.27.2008 9:26am
Sk (mail):
Are different tax rates for different first-amendment-protected materials legal?

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
5.27.2008 9:32am
BruceM (mail) (www):
RainerK: This is just more evidence in a pile already sky-high that Legislative "findings" should be given absolutely no weight at all. It's outside the scope of lawmaking to begin with. But it's become the ultimate invocation of ipse dixit in the modern legal landscape.

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.
5.27.2008 9:44am
A. Zarkov (mail):
Food and other items are exempted from sales tax, how is that not content based? I also noticed that when I buy a prescription medicine for my pet at the human pharmacy, I have to pay sales tax, but I wouldn't if the very same medicine were bought with a prescription for a human. So there's a tax based on who the use is: animal v. human.
5.27.2008 10:07am
Hank:
What is the bill's definition of "pornography"? If it is not limited, as obscenity is, to material that, taken as a whole, lacks serious literary, artistic, political, or scientific value, then it would apply to much mainstream media material. In other words, pornography under this bill may not be "different" or of "lower value," and there would go the only possible (and quite weak) constitutional justification for it.
5.27.2008 10:13am
ithaqua (mail):
To quote the bill more fully:

" 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.
5.27.2008 10:17am
A. Zarkov (mail):
Notice that the following is taxable:

"Sadistic or masochistic abuse"

Now wouldn't that apply some courses you take at University of California colleges?
5.27.2008 10:22am
Anderson (mail):
Though it has some constitutional value, it's of lower value, and may therefore be more broadly restricted.

Like commercial speech?

Now *there* is a tax that would balance California's budget.
5.27.2008 10:22am
Anderson (mail):
"Sadistic or masochistic abuse"

As an attorney, I would oppose that tax as an illegitimate burden on my profession.
5.27.2008 10:23am
cjwynes (mail):
I have what may be a novel idea about pornography, at least I've never heard anybody else propose it. IMHO, most pornography should actually be considered political speech and therefore granted the highest level of 1st amendment protection. That various prudes and feminists are so opposed to it tells me that there's a subversive political message implicit to pornography that deserves the highest level of protection.

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.
5.27.2008 10:26am
Paul Milligan (mail):
Just another lame attempt by another lame politico to find some 'unpopular thing' to use as an excuse to confiscate more money from the people, for said lame politico to then dole out to his friends and business partners.

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.
5.27.2008 10:26am
Elliot Reed (mail):
Considering what pornography is "used" or "consumed" for, the law is also constitutionally suspect under Griswold and Lawrence.
5.27.2008 10:30am
Ex parte McCardle:
"unbiased studies from Focus on the Family"

Now that's comedy!
5.27.2008 10:39am
A. Zarkov (mail):
"Just another lame attempt by another lame politico to find some 'unpopular thing'"

Unpopular? Why are sales then large enough to tax?
5.27.2008 10:46am
jazzed (mail):
ithaqua: [E]very single claim made here is correct, and has been verified by unbiased studies from Focus on the Family and elsewhere.

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.
5.27.2008 10:49am
BT:
What other choices do porn producers have if our darlings in black robes uphold this law? (For those who think that our courts will gladly overturn such as law just remember how conservatives thought that GWB and then the SC would save us from McCain-Feingold. They saved us alright).

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.
5.27.2008 10:55am
Tony Tutins (mail):
Taxing masturbatory aids such as pornography at higher rates than other masturbatory aids, such as vibrators, is a form of invidious gender discrimination, because it is well known that far more men use porn for masturbatory relief, while far more women than men use vibrators for that purchase. To avoid gender discrimination, therefore, vibrators and batteries will have to be taxed at the rate of 25%. All batteries bought by women will be assumed to be for vibrator use.
5.27.2008 10:56am
Tony Tutins (mail):
"use vibrators for that purpose"
5.27.2008 11:04am
Sk (mail):
"I have what may be a novel idea about pornography, at least I've never heard anybody else propose it. IMHO, most pornography should actually be considered political speech and therefore granted the highest level of 1st amendment protection."

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
5.27.2008 11:16am
BruceM (mail):
by unbiased studies from Focus on the Family

You're kidding, right? You have to be.
5.27.2008 11:31am
Anderson (mail):
Ithaqua can't be for real, I have decided; he/she/it is spoofing us.

"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.
5.27.2008 11:48am
JosephSlater (mail):
Re Ithaqua, his line in a different thread about Bush's wonderful response to Katrina finally convinced me that he (and I'm guessing the male gender) is indeed spoofing.
5.27.2008 12:00pm
BruceM (mail):
Well kidding in one thread doesn't mean kidding in others. I jokingly say wild and somewhat nutty things now and then, solely for my own benefit and amusement, but that doesn't mean my other posts are not serious. Each has to be taken in its own context.
5.27.2008 12:12pm
Anderson (mail):
Yes, but Ithaqua's too perfect a caricature of the twenty-seven percent. (Best Blog Post Ever.)

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.
5.27.2008 12:16pm
Charlie (Colorado) (mail):

Food and other items are exempted from sales tax, how is that not content based?


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?
5.27.2008 12:23pm
Smokey:
Paul Milligan:
Just another lame attempt by another lame politico to find some 'unpopular thing' to use as an excuse to confiscate more money from the people, for said lame politico to then dole out to his friends and business partners.
That's it in a nutshell. The ravenous hyenas known as legislators will use any excuse to get their greedy hands deeper into the pockets of workers. They are shameless, legally sanctioned thieves, as described here:

"I sit on a man's back, choking him and making him carry me, and yet assure others that I am very sorry for him and wish to ease his burden by all possible means -- except by getting off his back."

~ Leo Tolstoy
Our country's founders would be thoroughly disgusted at their total lack of character as evidenced by their selling out citizens to special interests for votes and money.
5.27.2008 12:23pm
SpenceB:
...the basic legal problem with all such 'Sin Taxes' (against alcohol, gambling, tobacco, pornography, etc.) is denial of judicial due process and constitutional separation of powers.

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 (??)
5.27.2008 12:24pm
Andrew J. Lazarus (mail):
I can't decide if the bill is for real or an excuse to invite porn stars to come testify against it.
5.27.2008 12:35pm
NickM (mail) (www):
The author (Assemblyman Charles Calderon) and coauthor (Assemblywoman Kathleen Galgiani) are both Democrats. Make of that what you will.

Nick
5.27.2008 12:49pm
teqjack (mail):

"For instance, the law applies to distribution of [¹] created outside California..."

---
¹ Tobacco, furniture, electronics, automobiles, gasoline...
5.27.2008 12:50pm
The General:
so the government is going to demand access to hard drives to tax the storage of porno? Good luck with that.
5.27.2008 12:54pm
Mikeyes (mail):
The author (Assemblyman Charles Calderon) and coauthor (Assemblywoman Kathleen Galgiani) are both Democrats. Make of that what you will.


Darn Tax-and-Spend Democrats. What do you think they will spend the money on? Sex education?
5.27.2008 1:05pm
BruceM (mail):
Anderson: I agree that Ithaqua's probably kidding. If something can be explained by both stupidity and maliciousness, always presume stupidity. However, if something can be explained by both stupidity and humor, I tend to believe humor should be the presumption. I suppose I'm just that much of an optimist. The level of stupidity needed to make that comment a non-joke is simply unfathomable. Thus, I agree, it is likely a joke.
5.27.2008 1:25pm
Clayton E. Cramer (mail) (www):
The fact that California Democrats are sponsoring such a bill should cause those of you who think that this is just silly pandering to the religious right to stop and start asking some questions about how out of touch you are with the mainstream of America.

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.
5.27.2008 1:43pm
PersonFromPorlock:
cjwynes:

I have what may be a novel idea about pornography, at least I've never heard anybody else propose it. IMHO, most pornography should actually be considered political speech....


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...." ;^)
5.27.2008 1:44pm
darelf:
"ithaqua" is all air. ( This makes sense to Cthulhu-heads )
5.27.2008 1:52pm
gallileo:
To Clayton Cramer @ 12:43:

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?
5.27.2008 1:58pm
A. Zarkov (mail):
Crazy as it might seem, the sponsors of this bill might actually think that it will raise significant revenue. This year California has something like a $20 billion state budget deficit, and the legislature is desperate for revenue. Look for more taxes like this. It's all about money, not sin.
5.27.2008 2:19pm
Ken Arromdee:
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.

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.
5.27.2008 2:22pm
Anderson (mail):
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?

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 ....
5.27.2008 3:40pm
Wayne Jarvis:

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.


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."
5.27.2008 4:01pm
Thief (mail) (www):
"Well, er, smoking's been taxed, drinking's been taxed but not ... thingy."

"Good Lord, you're not suggesting we should tax... thingy?"
5.27.2008 4:11pm
GatoRat:
I can't decide if the bill is for real or an excuse to invite porn stars to come testify against it.

Most lobbyists give money to politicians. What could porn stars give?
5.27.2008 4:12pm
en pointe:
Use? As in cum tax?
5.27.2008 6:24pm
ReaderY:
The Supreme Court's 3-tier approach to the issue (obscenity, pornography/indecency, ordinary speech) doesn't seem to have much basis in the constitution. In my view, it is an example of a regime in which the Supreme Court micromanages and sets boundaries based on what are essentially the Justices' personal views.

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.
5.27.2008 6:46pm
ReaderY:
Well, the grammar police just seem to be winning the day. Syntax measures just get more and more popular.
5.27.2008 6:49pm
kshankar:

(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.
5.27.2008 7:18pm
methodact:
"The power to tax is the power to destroy."

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.
5.27.2008 8:09pm
AK (mail):
California is going about this all wrong. If you want to raise revenue from an activity without the messy First Amendment cramping your style, you don't tax it. You regulate it.

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?
5.27.2008 10:44pm
Clayton E. Cramer (mail) (www):

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?
As I blogged here, excessive novel reading was believed to cause mental illness.

Down with all fiction!--Right?

Anyone here have trouble separating fantasy from reality?
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.
5.27.2008 10:50pm
Clayton E. Cramer (mail) (www):

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.
Utterly wrong. The movie rating system was established by the MPAA as a replacement for the Breen Code and the Hayes Code--and child porn laws have NO connection to the movie rating system.

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?
5.27.2008 10:53pm
Clayton E. Cramer (mail) (www):

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.
Wrong again. Laws against obscenity go back centuries, and the objection to NEA funding involved lots of people, including many whose primary objection was wasting government money when there were real social problems that needed fixing.

How can one liberal be so profoundly ignorant of the history of this stuff?
5.27.2008 10:55pm
Clayton E. Cramer (mail) (www):

...the basic legal problem with all such 'Sin Taxes' (against alcohol, gambling, tobacco, pornography, etc.) is denial of judicial due process and constitutional separation of powers.

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'.
The theory behind these taxes is that there are social costs associated with alcohol and tobacco and the money raised by taxing these legal commodities is supposed to pay for governmental costs associated with them. They are no more "sin taxes" than taxing gasoline to pay for roads, and taxing real estate to pay for police and fire protection.

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.
5.27.2008 11:01pm
Jmaie (mail):
(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...


Is it? Alcohol and substance abuse may as well lead to increased involvement in the production of pornography. Anybody have any, er, hard data?
5.27.2008 11:16pm
Frater Plotter:
Anyone here have trouble separating fantasy from reality?

Certainly, many children do.

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.
5.28.2008 1:16am
methodact:
Me continue my battle with (the late) Jack Valenti for 20 more years or the long challenge to Cultivation Theory?

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.
5.28.2008 1:47am
NickM (mail) (www):
It just occurred to me that this bill may have been intended as a political "gotcha" where Democrats put it up, never intending to pass it into law, but intending to create election ads against Republicans who have taken "no new tax" pledges, because these Republicans will have voted "in favor of hardcore pornography" by voting against this bill.

Nick
5.28.2008 3:59am
Smokey:
So, is the definition for porn still, "I know it when I see it"?
5.28.2008 3:12pm