UCLA Law Professor Eugene Volokh explains why California’s proposed 25% tax on pornography is likely unconstitutional:
Content-based taxes on the sale of First-Amendment-protected materials (and recall that the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography) are generally forbidden[….]
See his full analysis here.
Even putting aside the legal problems, we’ve previously discussed why such taxes are poor taxA tax is a mandatory payment or charge collected by local, state, and national governments from individuals or businesses to cover the costs of general government services, goods, and activities. policy here and here:
ShareUsing taxes as a tool of social engineering is poor policy because it complicates the tax code and increases the amount of rent seeking. Issues of social engineering are best left to the expenditure side of the equation in order to keep the tax code simple.[…]
Can Orie really justify a 10 percent excise taxAn excise tax is a tax imposed on a specific good or activity. Excise taxes are commonly levied on cigarettes, alcoholic beverages, soda, gasoline, insurance premiums, amusement activities, and betting, and typically make up a relatively small and volatile portion of state and local and, to a lesser extent, federal tax collections. as the optimal Pigouvian taxA Pigouvian tax, named after 1920 British economist Arthur C. Pigou, is a tax on a market transaction that creates a negative externality, or an additional cost, borne by individuals not directly involved in the transaction. Examples include tobacco taxes, sugar taxes, and carbon taxes. ? Not likely.[…] If you asked someone who supports higher cigarette taxes whether they favor banning cigarettes, they typically say no, arguing that such a policy would be an unfair restriction on individual freedom and have serious black market effects. But these same people have no problem imposing huge taxes on cigarettes that are far in excess of any optimal Pigouvian tax, which is also an infringement of liberty and has serious black market effects.