Sen. Jane Orie, R-McCandless, late last week asked the Pa. Senate to approve a resolution authorizing the Legislative Budget and Finance Committee to study whether a 10 percent excise tax on adult entertainment products would be practicable for the state.
Orie said the study would investigate the possibility of taxing distributors and publishers of adult content, adult book and video stores, escort services and strip clubs, and argued that a tax would “remediate the harm they are doing in communities.”
Orie, a graduate of the Duquesne University Law School who practices law in Allegheny County, noted that constitutional challenges to similar tax laws in Utah and Texas must be watched closely by Pa. lawmakers, but opined that it would be possible to establish the tax if it targets only the “secondary effects” of adult businesses.
The revenue from the tax would go to assist programs that deal with problems that allegedly arise from the use of pornography, Orie said, citing mental health, child advocacy and domestic violence as areas of service that are affected by adult entertainment.
Jeffrey Douglas, chairman of the Free Speech Coalition, told XBIZ that Orie’s assurances that the tax would be constitutional if limited to “secondary effects” adult entertainment were an oversimplification of the question, at best.
”At the heart of this kind of proposal is taxation that targets one form of protected expression over another, and it means that the government is favoring one form of expression over another,” Douglas said. “No matter how proponents embroider it, all of these taxation schemes are designed to burden forms of expression that they don’t like, but not forms of expression that express the same thing, but that don’t show off the same body parts.”
Douglas said that the courts have consistently shot down taxation that targets disfavored forms of expression, and said that Orie’s proposal is likely to meet the same fate.
Asked why state governments would continue to propose such forms of taxation if they are doomed to be struck down by the courts, Douglas said it all comes down to politics.
“These proposals are inconsistent with the 1st Amendment and inconsistent with legal precedent — but they make great local politics, so we continue to see these bills,” Douglas said.
