August 1, 2005 4:51 PM PDT

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.

18 comments

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If you erect it, they will cum
The problem I've got is "How are they planning to impose the tax?"

Are we going to impose banned IP addresses because they are a source for smut? Then are they going to impose this on all the spammers?

The cruft that appears on my email boxes doesn't rate as porn, well except for all those viagra ads, but if they manage to figure out a way to tax porn, then they should impose the same tax, pre-paid, on all of the cruft!

Hell, if they can put the spammers out of business by imposing these measures, I'd go for it.

But I don't think its likely until everybody adopts spoof-proof IPv6 end-to-end email transport mechanisms.
Posted by CharlesRovira (97 comments )
Reply Link Flag
As a side point
I don't believe the spammers are the problem, it's
the businesses that use them to promote their
products. Also, the people that actually buy these
products are to blame. Eliminate the market and you
eliminate the problem.
Posted by Johnny Mnemonic (374 comments )
Link Flag
What does a tax have at enforcing a law?
Sorry I don't see the connection between imposing a tax and enforcement of a pre-existing law! If the tax is not passed will these sites be allowed to continue violating the law prohibiting distribution of adult oriented material to minors? Should we tax used gun dealers and drug pushers too? The law is already paid to handle these criminals. I feel the revenue tax lends a degree of legitimacy to these sites! To me it would seem a licensing fee is in order! Which has strict publishing requirements that these sites would have to adhere to or they don't get WWW exposure!
Posted by (24 comments )
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used gun dealers may be legal and taxed
As another side point: used gun dealers are not necessarily criminals. I don't know where you're writing from, but at least in the USA, only a tiny fraction are. Most gun shops have used guns for sale as well as new, and people are allowed to sell their own used guns. (In some states, they have to do it through a dealer.)

They are also already taxed. If you sell enough guns (used, new, or whatever) for the BATFE (Bureau of Alcohol, Tobacco, Firearms, and Explosives) to consider you a "dealer", you do have to get a federal license. There is also sales tax in most states, and business tax in most counties, plus a federal tax that IIRC is 10% on all handguns and ammo (the Pittman-Robertson tax, that goes towards wildlife conservation).

Now if you're referring to the kind who deals out of the trunk of his car, to known criminals (a crime in itself), has no license, doesn't do background checks, doesn't keep the mandatory paperwork, and plies his trade where guns are illegal in the first place, that's a whole 'nother story....

(Let's also skip the standard useless ranting "gun control" debate that this could easily devolve into.)

-Dave
Posted by davearonson (35 comments )
Link Flag
What part of "can't tax free speech" do you not understand?
"Sorry I don't see the connection between imposing a tax and enforcement of a pre-existing law! If the tax is not passed will these sites be allowed to continue violating the law prohibiting distribution of adult oriented material to minors?"

If someone is violating the law, you go after THAT person. The point is that you cannot penalize an entire industry because of a few "criminals".

Besides, how are you going to enforce your tax on sites that are outside the borders of this country? Or are you really advocating censorship?
Posted by R. U. Sirius (745 comments )
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sorta precedent?
I'm not a legal scholar, but it seems to me that, in contradiction to at least some of what the author says in this story, we do have a sorta precedent for picking and choosing an area of expression to tax - aren't alcohol and/or cigarettes (and auto fuels?) taxed above and beyond other products? It seems to me that the same logic used to justify imposing additional taxes on these kinds of products could be extended to encompass porn, in the sense that both booze/tobacco and porn have addictive qualities and are strongly correlated with various societal ills. If we allow that the government has a right and obligation to impose additional taxes on some commercial products, then it seems only natural that the same right should extend to taxing porn, even though the internet sort is not a "physical" product. Just my 2 cents . . .
Posted by Brinf (11 comments )
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precedent
It's a good question. The short answer is that cigs and booze are not protected by the First Amendment. News organizations are.
Posted by declan00 (848 comments )
Link Flag
Will they go blind?
Illing affects of porn? Hmmmh... Sudden losses of blood supply to the brain? Aggravated carpal tunnel syndrome? Wow one really can go blind? I see your intent but I don't agree that porn ills people like alcohol and liquor do. With growing acceptance of make shift porn houses going rampant the societal burden is to insure no ones getting kidnapped and raped for it! The increased expenditures to insure such things aren't happening justify specialized taxing. Good old Income tax handles the rest!
Posted by (24 comments )
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Got a problem? Tax it!
It has become very clear that 1/2 our politicians have no idea what they are talking about or proposing, and the other 1/2 seem clueless...sad state. Gee, I wonder, did this politician give any thought to how this tax would be enforced and collected? I have no idea how this tax would make the internet safer. I agree we want to make the internet safe, but for god sakes we expect (I dont know why) intelligent suggestions from those who assume the banner of leadership.
Posted by trudancor (14 comments )
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Good point
I definitely agree that the story as presented gave no insight whatsoever into the question of *how* the government would levy and enforce such a tax. Quite obviously, there's no way to make such a tax universal, anyway, which would seem to limit its usefulness even if it could be done in the U.S. to begin with . . .

If, as I suspect, the idea is to tax those companies that *want* to operate in the open and within the boundaries of law (Playboy, etc,) then you have another problem - now you've given these companies an incentive to move offshore to avoid taxation. So even if such a tax could be passed, it would probably only discourage anyone from operating a "clean" porn site, since only these kinds of sites could be succesfully taxed to begin with. Naturally, the sites that are the really bad offenders as far as "pushing porn in front of kids" weren't ever going to pay any US government tax, anyway - and these are the bad actors such a tax would be designed to punish, to begin with.

Regardless of what anyone thinks of the intent behind such a law, it seems poorly conceived. Funny that its sponsors are democrats . . .
Posted by Brinf (11 comments )
Link Flag
Here we go with "protecting the children"
Here's a simpler solution: How about setting aside one state and creating a large camp were all parents can send their kids. They will be read fairy tales their entire life. To keep them from hurting themselves they will not be allowed to play. To keep them from thinking about sex they will be eliminated once they reach puberty.

Another plan: To keep kids from viewing things that may be sexually stimulating the telvision, the camcorder will be prohibited. Modes of transportation will be eliminated -- internet, cars, mail. To keep children from hearing about sex will air eliminated. Adults will be eliminated.

Another plan: FORCE PARENTS TO WATCH THEIR KIDS. If you don't want the responsiblity then don't have them. I'm tired of this protect the kids bs. If you really want to protect kids then stop allowing worthless parents to have them. If you don't have time then force the politicians to make it where you do have time. Our whole goal on this planet is to reproduce to keep the species going, forget all the other bullsh*t we make up to do in the meantime. You can't keep kids from sex forever, they'll seek it out.
Posted by Darryl Snortberry (96 comments )
Reply Link Flag
The point is being missed! The tax would not be in place to violate the first ammendment. Decency is not a first ammendment issue any way. The tax is needed to cover the costs of the damaging effects of Porn addiction, the damage it causes families and the costs of housing the criminals this addiction produces. Look at familyvaluesandmorals.com!
Posted by Kinley Peterson (1 comment )
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