April 24, 2002
Taxing science fiction

Mac Thomason pointed to this article in which a GOP candidate for Congress proposed taxing science fiction books as a means of funding NASA. Not only is it a stupid idea, it's very likely an unconstitutional one.

In the case of ARKANSAS WRITERS' PROJECT, INC. v. RAGLAND, 481 U.S. 221 (1987) 481 U.S. 221, Arkansas imposed sales tax on all general interest magazines but exempted newspapers and "religious, professional, trade, and sports journals and/or publications printed and published within this State". An Arkansas magazine publisher sued to get a refund on sales taxes, citing a previous case, MINNEAPOLIS STAR v. MINNESOTA COMM'R OF REV., 460 U.S. 575 (1983) 460 U.S. 575, in which a "use tax" on paper and ink was voided. The Supreme Court voided the Arkansas tax as well:

2. 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. Pp. 227-234.

(a) Even though there is no evidence of an improper censorial motive, the Arkansas tax burdens rights protected by the First Amendment by discriminating against a small group of magazines, including appellant's, which are the only magazines that pay the tax. Such selective taxation is one of the types of discrimination identified in Minneapolis Star. Indeed, its use here is even more disturbing than in that case because the Arkansas statute requires official scrutiny of publications' content as the basis for imposing a tax. This is incompatible with the First Amendment, whose requirements are not avoided merely because the statute does not burden the expression of particular views expressed by specific magazines, and exempts other members of the media that might publish discussions of the various subjects contained in appellant's magazine. Pp. 227-231.

(b) Appellee has not satisfied its heavy burden of showing that its discriminatory tax scheme is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. The State's general interest in raising revenue does not justify selective imposition of the sales tax on some magazines and not others, based solely on their content, since revenues could be raised simply by taxing businesses generally. Furthermore, appellee's assertion that the magazine exemption serves the state interest of encouraging "fledgling" publishers is not persuasive, since the exemption is not narrowly tailored to achieve that end. To the contrary, the exemption is both overinclusive and underinclusive in that it exempts the enumerated types of magazines regardless of whether they are "fledgling" or are lucrative and well established, while making general interest magazines and struggling specialty magazines on other subjects ineligible for favorable tax treatment. Moreover, although the asserted state need to "foster communication" might support a blanket exemption of the press from the sales tax, it cannot justify selective taxation of certain publishers. Pp. 231-232.

As they say, I Am Not A Lawyer, so take my word with an appropriate level of skepticism. My layman's reading of this sure makes me think that a tax on specific content wouldn't stand up to judicial review, however.

I was alerted to this by Kyle Giacco, a member of the Round Table mailing list, which Ginger recently mentioned. It's for reasons like this that I consider blogging and mailing lists to be complementary activities. I occasionally mention stuff I see on blogs (like this) to the list, and I occasionally point to links I've gotten from the list. Here, I forwarded something which led to an interesting thread and eventually to this post. If this were a corporate merger, we'd call that "synergy".

Posted by Charles Kuffner on April 24, 2002 to Legal matters