Senators seek Web porn tax

A new federal proposal that would levy stiff taxes on Internet pornographers violates constitutional guarantees of freedom of expression, legal scholars say.

Sen. Blanche Lincoln, an Arkansas Democrat, characterized her bill introduced last week as a way to make the Internet a "safer place" for children. The bill would impose a 25 percent tax on the revenue of most adult-themed Web sites.

"Many adult-oriented Web sites in today's online world are not only failing to keep products unsuitable for children from view, but are also pushing those products in children's faces," Lincoln said. "And it's time that we stand up and say, 'enough is enough.'"

But legal scholars who specialize in the First Amendment say courts have rejected similar taxes in the past--and are likely to do so again, if Lincoln's proposal becomes law.

"The general principle is that if you can't ban a certain category of expression, then you cannot selectively impose a tax on it," said Jamin Raskin, a professor of constitutional law at American University. "So if the speech that the senator is targeting is protected by the First Amendment, it may not be selectively taxed."

"The bottom line is, if it were constitutional to tax a disfavored category of speaker, then there would be 99 percent taxes on pornography and hate speakers and Howard Stern and so on," Raskin said. "But the courts understand that the power to tax ultimately is the power to destroy."

Jerome Barron, a former dean of George Washington University Law School who teaches First Amendment law, noted that the Supreme Court in 1936 rejected a 2 percent tax on newspapers with circulations of more than 20,000 copies a week.

"You can't use the taxation power as a weapon of censorship," Barron said.

A more recent Supreme Court case, Minneapolis Star v. Minnesota Commissioner of Revenue, tossed out a Minnesota law taxing paper and ink products used by newspapers.

Lincoln's bill, called the Internet Safety and Child Protection Act of 2005, would apply only to adult sites subject to controversial record-keeping requirements regarding the identities of people participating in sex acts displayed on Web sites. Those sites must cough up the taxes and use age verification techniques "prior to the display of any pornographic material, including free content."

The Supreme Court has largely rebuffed Congress' previous attempts at Internet censorship. It rejected the Communications Decency Act's prohibition on "indecent" material, and upheld an injunction against the Child Online Protection Act, which targeted "harmful to minors" material online.

Other Senate sponsors of the legislation--all Democrats--include Thomas Carper of Delaware, Mark Pryor of Arkansas, Mary Landrieu of Louisiana, Joseph Lieberman of Connecticut, Ken Salazar of Colorado, Debbie Stabenow of Michigan, Evan Bayh of Indiana and Kent Conrad of North Dakota.

CNET News.com's Anne Broache contributed to this report.

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