Republicans' Hypocritical Stance on Alabama's Proposed Porn Tax

Conservative columnist Tamara Tabo takes aim at hypocrisy.

The Alabama legislature is poised to pass a bill that would levy a 40 percent tax on the sale or rental of pornographic material. Republicans have led the move.  

As conservatives, they should be ashamed of themselves.

Nobody likes a budget crisis. The proper response touted by most conservatives, though, involves searching for inefficiencies in how government actors operate within their current budgets, evaluating state priorities, and tightening proverbial belts where necessary. Rarely should legislators ask citizens to hand over more cash by increasing tax rates or creating new taxes.

Yet the Alabama Republicans pushing the porn tax aim to expand the state’s tax structure. Adding conservative insult to injury, the Republicans are guaranteeing that the new source of revenue here will be especially expensive to implement.

Who Loves Porn?

At first blush, taxing porn looks mighty alluring to conservative lawmakers. “Sin taxes” on the sale of liquor and tobacco steadily generate revenue, highfalutin talk of deterrence notwithstanding. Reliably, people love their “sins.” They begrudgingly pay up rather than give up their vices.

Moreover, proponents of a tax on porn put their opponents in an uneasy spot. Being tagged as a “pro-porn” politician helps few elected officials with constituents east of Berkeley, California.

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Even the citizens who know they themselves would pay a higher price for their own porn consumption are rarely bold enough to speak out against the proposed legislation. It’s one thing to canvass your community to fight the government’s efforts to tear down a historical landmark or something. It’s quite another to go door-to-door asking your neighbors to help you ensure that you aren’t charged 40% more to satisfy your appetite for deviant T & A. This is not a role in which Jimmy Stewart would be cast in the motion picture version of the story.

While a porn tax may look like low-hanging fruit to conservative leaders, they still should know better than to bite.

The High Cost of (Taxing) Porn

A porn tax costs, and it doesn’t just cost consumers of pornography.

Of course, collecting any new tax costs the state money, even when people dutifully comply. With a porn tax, though, the associated administrative costs are greater than usual.

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Creating a hefty tax on porn creates a proportionally hefty incentive for people to avoid the tax. Some folks might rely on any of the usual methods of tax evasion. Plenty will surely also try to escape Alabama’s porn tax by denying that their goods or services even are porn.

In order to decide whether something falls within the statutory definition, a bureaucracy will inevitably build. Regulation. Investigation. Litigation. More regulation. All at the state’s expense.

One Man’s Porn Is Another Man’s Friday Night

Defining exactly the sorts of commercial transactions subject to a porn tax poses a challenge in itself.

The primary part of the bill at issue provides:

In addition to any other applicable taxes, a 40 percent state excise tax on gross receipts resulting from the sale or rental of sexually-oriented material the sale or rental of which is prohibited to a minor as defined herein.

What does this cover exactly?

The Alabama porn tax bill defines “sexually-oriented material” as:

Any book, magazine, newspaper, printed or written matter, writing, description, picture, drawing, animation, photograph, motion picture, film, video tape, pictorial presentation, depiction, image, electrical or electronic reproduction, broadcast, transmission, video download, telephone communication, sound recording, article, device, equipment, matter, oral communication, depicting breast or genital nudity or sexual conduct as defined herein.

Alabama apparently considers written and visual depictions of breast and genital nudity to be “sexually-oriented materials,” even if there’s nothing about the depiction that is designed to stimulate sexual arousal.

So, don’t go distributing how-to diagrams for tampons or writing your filthy articles about lactation in magazines for new mothers, unless you accept that this stuff counts as “sexually-oriented material” in Alabama.

To say nothing of trash like the Venus de Milo.

What does Alabama consider “sexual conduct”?

SEXUAL CONDUCT. The term means:

(a)Any act of sexual intercourse, masturbation, urination, defecation, lewd exhibition of the genitals, sado-masochistic abuse, bestiality, or the fondling of the sex organs of animals; or

(b) Any other physical contact with a person’s unclothed genitals, pubic area, buttocks or the breast or breasts of a female, whether alone or between members of the same or opposite sex or between a human and an animal, in an act of sexual stimulation, gratification, or perversion. […]

In the interest of high-minded discourse, I shall stifle any comments about Alabama, of course, being the kind of state where savvy legislative language includes not one but two enumerated varieties of sex with animals.

Instead, I’ll note that here too Alabama’s definitions sweep far and wide. Notice, for example, that any act of urination or defecation counts as “sexual conduct.” Not just “golden showers” intended to use urination as a means of sexual arousal. Any act.

The next time you run to the loo, just tell your companions that you need to attend to a bit of “Alabama Sexual Conduct.”

Better still, when referring your toddler’s potty training, tell folks, “Yeah, there have been a lot of sleepless nights in our house lately. We’ve been working on little Madison’s sexual conduct. I think she’s starting to get the hang of it.”

To be fair, bear in mind that the porn tax specifically applies to “the sale or rental of sexually-oriented material the sale or rental of which is prohibited to a minor as defined herein.” But Alabama says that, “it is illegal for any person to distribute to a minor any material which is harmful to minors, including certain sexually-oriented materials.”  So the porn tax would apply to the sale or rental of any of the stuff listed that might be harmful to kids.

Or that some Alabama officials might happen to think is harmful to kids.

You don’t have to be Paul Clement or Ted Olson to realize these definitions will yield a whole lot of cases to argue about.  

Alabama Shakes Its Angry Fist At The First Amendment

More importantly, a law of this sort invites constitutional challenges on vagueness and overbreadth grounds.  

A law may be unconstitutionally vague when the law fails to put a reasonable person on notice that his conduct falls within the law’s prohibitions.

Courts can strike down a law as overbroad when it could penalize activity protected by the First Amendment, along with activities that the state can properly penalize if it wishes. So, if a law is written in a way that penalizes, say, artistic expression involving nudity, while also penalizing obscenity, it may be overbroad.

Since overbroad laws risk chilling free speech, parties may challenge them even if the law as applied to them would be constitutionally permissible. So, self-identifying pornographers could still bring an overbreadth challenge to Alabama’s porn tax bill if it becomes law, if they can convince a court that some sorts of constitutionally protected conduct might fall under the law.

Try as the tax bill’s drafters might to include sufficient details, this sort of law is ripe for dispute. As more parties argue that the porn tax does not apply to their conduct, the more government resources will need to be spent on enforcement of the law. Someone will have to decide whether particular instances fall within Alabama’s new law.  One way or another, that “someone” will receive a government salary.  

Alabama’s proposed tax on porn would be bad enough if it were proposed by the state’s liberal lawmakers.  The fact that supposed small-government conservative Republicans are to blame makes a bad piece of legislation just a little bit worse.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.