California considering a porn tax? I found this story at an odd news RSS feed. But is it so odd? I wrote an op-ed rough draft seven years ago, proposing a similar thing. I've cut-and-pasted it below, and I've bolded the most-salient paragraph. Forgive any awkward sentences or mistakes. It should also be noted that the California legislator is imposing the tax at the level of production, not point of sale, so parts of the op-ed aren't relevant to the current bill in California. Finally, be aware that my thinking on taxation issues has shifted quite a bit in the past seven years, but I was fortunate to find the old piece in my archives so I'm posting it anyway:
Pornography is not a good thing.
Although one might argue that pornography is a mere mild scourge that results in a few unpleasant things like sex addiction, there is ample evidence that it is a major scourge on our culture that contributes to serious problems like crime (especially sex crimes), disrespect for women, domestic abuse, adultery, and divorce. Empirical evidence shows that municipal areas with sex businesses become centers of crime--prostitution, racketeering, money laundering--and that pornography is a common denominator among convicts. We can debate whether pornography leads to crime or whether pornography merely attracts the criminal element, but either scenario isn't a ringing endorsement for pornography.
We also know, from common sense, that vice tends to lead to other vices, and that viewing glorification of a vice can lead to acting out that vice. If audio-visual portrayals didn't influence people in such fashion, all modern advertising would be a complete waste of money. We also know that pornography has become remarkably prevalent on the Internet, with some experts estimating there are 70,000 porn sites [as of 2001], many of them featuring and glorifying indefensible acts like violence, beastiality, and necrophilia.
Significantly, I know few mature people who defend pornography for itself. It is almost always defended for what it protects: free speech and the First Amendment. “I think pornography is a scourge, but we can't prohibit it because, next thing you know, we'll be banning Thomas Mann's Death in Venice and Greek sculptures.”
There are lots of problems with that presupposition (most particularly, it posits a false dichotomy: either rampant porn or censorship of real art, with no possibility that there's a middle ground). But the point is well taken: We have the First Amendment that prohibits abridgement of speech and, even though the Amendment is not an absolute (no one can yell “fire” in a crowded movie theater in the name of free speech) and it does not, according to the Supreme Court, protect obscenity, it is difficult to draw a line between obscenity and legitimate forms of expression, hence Justice Stewart's famous dictum, “I know it when I see it.”
So there's the problem: Pornography is most likely a societal scourge that merits no constitutional protection, but if we ban it altogether we could end up banning legitimate forms of expression.
But we need to take steps to curb pornography. It is becoming pervasive, seen everywhere from borderline instances in Abercrombie & Fitch catalogs to cable television, billboards featuring erotic entertainment to normally-respectable magazines discussing certain forms of sexual degradation as though they are normal fare for adults.
Many people have stepped forward and asked that we at least start stigmatizing pornography: Make a public statement that it is a bad thing and push for its elimination–not criminalization, but elimination as a preferred mode of behavior, much like we have done with cigarette smoking.
I agree with this approach, but I think it should be taken one step further. We need to consider a porn tax.
An excise tax on porngraphy could raise hundreds of millions, which could partly be used to educate the populace about the dangerousness of porn. [2008 comment: I've given up hope that the government can ever do anything good with tax dollars, except in very limited cases.] And it would send a clear signal: pornography is bad, so we'll tax it.
The idea of leveling a tax on undesirable types of conduct is hardly a new idea. Currently, the federal government levies additional taxes on a slew of things: liquor, beer, wine, cigarettes, gambling, luxury cars, gas guzzling vehicles, firearms, gas, kerosene, airline tickets, bow and arrows, fishing gear, outboard motors, and telephone communications. All these things are (i) at some level objectively harmful to society, (ii) superfluous enough that we figure we might as well tax them, or (iii) big sources of revenue. A tax on pornography would qualify under all three of these criteria.
Admittedly, such an excise tax would at times be difficult to collect (how do you collect additional taxes from a lap dancer?). But that is no reason, by itself, to refrain from imposing it, hence states continue to impose the notoriously-ignored Use Tax–the tax that says you should pay sales tax to your state when you buy something from other states and bring it to your home (like when you buy something from a catalog or over the Internet).
And certain types of porn taxes could be very easy to collect, like a type of sales tax. Sales tax are preferred by states, partly because they are easy to administer: the onus is on the retailer to pay it, so the retailer passes the tax onto the customer, collects it at the “point of sale,” and gives it to the state without affecting his profit margins. A tax imposed on pornographic magazines or renting a video would be similarly easy to collect.
I realize such a tax would prompt a few consumers to get their porn elsewhere, most notably the Internet, and thereby reduce the tax revenues.
I'm afraid a porn tax would largely be ineffective on Internet trafficking because we have no effective mechanism for collecting an Internet tax (and I don't really want to develop one) and a lot of the most-disgusting porn comes from other countries. We could impose an additional income tax on revenue generated from porn sites, but it would be virtually impossible to collect from companies that have non-porn products. We could also consider a point-of-sale tax on pornographic purchases over the Internet, but we still don't have the mechanism for enforcing such taxes.
But that is no reason not to consider the porn tax at all. Porn taxes would still be effective in the humongous videotape industry and help stigmatize an industry that has gotten out of hand.
A porn tax would also raise the same old definitional problems: what is pornography? It's an issue that would need to be resolved, but we're talking about a tax, not an outright ban, so a definition that is at times incorrectly applied would not have nearly the First Amendment implications that an outright ban would have.
For discussion purposes, I would propose that porn taxes articulate a series of more-or-less bright-line acts or exposures that constitute prima facie evidence that a product is pornographic: display of genitalia; an act of physical violence combined with sexuality; any display of taboo practices like incest, beastiality, necrophilia. The porn tax could list such things as “on their face” pornographic and thereby taxable, subject to the taxpayer's right to try to establish their artistic or literary value, analogous to the way that all income is deemed taxable income unless the taxpayer can establish an exemption. Porn taxes should also contain a “catch-all” clause that allows officials to characterize other things as pornographic, but the burden would be on the government to uphold their label if the taxpayer challenges.
I don't claim to have all the implications of a porn tax worked out. This is just an opening salvo, if you will. We are increasingly beginning to see that pornography is a problem for our country and one that needs to be addressed. The idea of imposing sin taxes is well-accepted. At this point, I believe porn taxes should be taken up by taxation and constitutional law experts to determine which types of porn taxes are feasible and constitutionally justifiable.
