CYBERSPACE – The recently proposed “porn tax” bill raises serious Constitutional issues, and may have difficulty withstanding the scrutiny of the courts, legal experts say.Senator Blanche Lincoln (D-Ark.) proposed the bill, called the Internet Safety and Child Protection Act of 2005 (S 1507), asserting that the legislation is needed to force adult-oriented websites from “pushing those products in children’s faces.” While the bill appears to be enjoying bipartisan political and public support, it is raising concern among Constitutional scholars and adult industry attorneys.

Jeffrey Douglas, chairman of the Free Speech Coalition (FSC), asserts that the proposed law faces a variety of problems with its basic, underlying constitutionality. “Any time you target media for taxation, you have a problem, and when you target just a subset of that media, you have an even bigger problem,” Douglas said, adding that a tax pertaining to adult websites only amounts to “targeting a subset, of a subset, of a subset” of a media type.

In defining the scope of the proposed tax, the bill states, “The term ‘regulated pornographic Web site’ means a person required to maintain documents verifying the age of persons engaged in sexually explicit conduct pursuant to section 2257(a) of title 18, United States Code.” By tying the applicability of the tax to sites that are subject to 2257 record keeping requirements, however, Douglas asserts that the authors of the bill have created a problem with under-inclusiveness.

“There is not a 100% correspondence between ‘harmful matter’ and materials covered by 2256 and 2257,” Douglas said. Meaning, if law relates only to content subject to 2257 regulations, then a great deal of content that parents would consider “harmful” to their children would not be subject to the tax – exposing ways in which the law would be under-inclusive even by the terms of its own logic, a fact which serves to undermine the bill’s ostensible raison d’être.

Another pitfall for the legislation lays in the age verification methodology advocated in the new bill. “The age screening mechanism proposed in this bill actually employs more restrictive methods than those the courts have already shot down in the COPA and CDA decisions,” Douglas said. “One problem with credit card-based age verification is that, if you cannot get a credit card, you are unable to access a form of speech which you have a constitutional right to access – so that method simply does not work, constitutionally.”

UCLA professor of law Eugene Volokh also sees problems with the bill’s over-broadness, telling YNOT that since the proposed tax “does not differentiate between unprotected obscene speech and Constitutionally-protected speech, both the age-shielding and discriminatory taxation aspects of the proposed law are likely to be found unconstitutional.”

On his blog (http://volokh.com/), Volohk further noted that content-based taxes can generally be upheld only if the government can show that the law is necessary to serve a compelling government interest. “Even if the interest in raising money to fight the allegedly harmful effects of Internet pornography… is compelling, it’s pretty clear that content-based taxes aren’t necessary to serve that interest; taxes that are unrelated to speech would do the job just as well.”

Several legal experts contacted by YNOT pointed to a specific pair of cases as being of particular interest when discussing the proposed tax; the 1936 case Grosjean v. American Press Co. ( 297 U.S. 233), and 1987’s Arkansas Writers’ Project Inc. v. Ragland (481 U.S. 221).

(Please note that these cases are rich with complexity, and what follows are very simplified renditions of the Supreme Court’s central conclusions.)

In the Grosjean case, the Louisiana legislature sought to impose a tax of 2% on newspapers that exceeded a specific volume of distribution. The US Supreme Court decided the tax was unconstitutional, stating in their decision, “The tax here involved is bad not because it takes money from the pockets of the appellees….. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.”

In the Arkansas Writers’ Project case, the Supreme Court held that “The Arkansas sales tax scheme that taxes general interest magazines, but exempts newspapers and religious, professional, trade, and sports journals, violates the First Amendment’s freedom of the press guarantee,” again underlining the difficulty in segmenting out one particular subset of speech from others when it comes to levying taxes.

Robert Apgood of AdultLaw.com commented that he sees the case as the “modern day equivalent of raising the price on paper and ink to regulate newspapers,” a reference to the 1983 case Minneapolis Star v. Minnesota Comm’r of Rev. (460 U.S. 575), in which the Supreme Court held that the threat of taxes targeting the press for special treatment “can operate as effectively as a censor to check critical comment by the press, thus undercutting the basic assumption of our political system that the press will often serve as an important restraint on government.”

Apgood also joked that the proposed tax “arguably rises to the level of an excessive fine,” prohibited under the 8th Amendment, adding that “a 25% tax is heinous,” and regardless of its Constitutionality, the tax and accompanying age-verification requirements amount to backdoor regulation, the real purpose of which is to curb the distribution of sexually explicit content.

“The bottom line,” said Douglas, “is that if they want to pass this tax as it is currently proposed, they are going to have to rewrite the rest of the Constitution, first.”