Proposed Taxes on Porn Both Unconstitutional and Bad Tax Policy

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 tax policy here and here:

Using 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 tax as the optimal Pigouvian tax? 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.


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