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Another Year, Another Proposed California Porn Tax

Just in time, Free Speech gets its annual issue to lobby about

Another Year, Another Proposed California Porn Tax

SACRAMENTO - Remember how politicians who don't want a lot of publicity for some of the things they propose tend to announce them either late Friday night of any given week, or over the weekend, rightly surmising that most people have better things to do with their time on weekends than to read the news?

And if you're planning to run for Attorney General in a fairly liberal state like California, hiding the fact that you're proposing yet another tax on porn is probably your wisest move.

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On Saturday, Feb. 27, Assemblyman (and majority leader) Alberto Torrico (D-Fremont) introduced Assembly Bill (AB) 1082 , which would establish a "Domestic Violence Prevention Fund" in the California State Treasury, all proceeds of which would be given to the Department of Corrections and Rehabilitation "for programs to monitor an offender who is on parole for domestic violence or stalking, or sentenced to probation for domestic violence or stalking, or on a conditional discharge for a violation of an order of protection, to be placed under an electronic surveillance system that will both allow peace officers to speak to the offender through the surveillance device and warn potential victims of the offender's presence in a forbidden zone."

That "electronic surveillance system" would be put in place by another bill Torrico also introduced on Saturday, AB 1081 , which would "allow the court to order electronic surveillance for domestic abusers and stalkers as a condition of parole, mandatory supervised release, probation, or violation of a protective order." The device would have an incorporated GPS system, part of whose capabilities would be to notify police if an offender came within a certain distance of his (or her) victim's residence or workplace and notify the victim (and police) that his/her stalker was near - and violators would be assessed some fee to help pay for the system.

But it's not only offenders themselves whom Torrico would bill for the costs of maintaining the system. AB 1082 would also levy a tax on "the gross receipts of any retailer from the sale of all tangible personal property that is harmful matter sold at retail in this state."

Of course, "harmful matter " is one of those unconstitutionally vague terms that legislatures frequently use, and in California's case, it's found in the Penal Code, Sec. 313, which defines it as "matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

In other words, it's the familiar description of "obscenity" found in Miller v. California, but with the caveat that it's "for minors."

So, in short, Torrico is proposing to tax, among other things, any sexual material - that is, "any book, magazine, newspaper, video recording, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction or any other articles, equipment, machines, or materials," including "live or recorded telephone messages" - that could legally be sold to an adult but not to a minor, and to use the revenues derived therefrom to pay for electronic surveillance of domestic violence offenders (or even celebrity stalkers), even though there's never been a validated scientific study indicating that looking at porn causes or in any way contributes to domestic violence.

Perhaps one indication of how thoroughly Torrico has thought this idea through is the fact that in every place in the bill where the taxable percentage would be noted is a blank space.

In that, Torrico may have learned from the master of failed California porn tax bills, Asm. Charles Calderon, whose most recent effort, 2008's AB 2914, was also first floated without a fixed percentage, and over the "life" of the bill, reflected percentages ranging from 8.3% to 25% of retailers' gross revenues.

In any case, such a tax would be struck down by a court since it would be a tax based on the content of the material being taxed, and the U.S. Supreme Court has deemed such taxes to be unconstitutional.

It's tempting to think that Torrico is simply following some national trend, which has seen states from New York to Tennessee to Texas to Michigan to Wisconsin to Washington propose some form of tax on adult entertainment, but considering that less than one week ago, Torrico, a self-described "born-again Christian," announced his intention to run for California Attorney General when his Assembly term expires in 2010, it seems likely that the proposal is meant to curry favor with the state's religious conservatives, who last banded together to stop California's gays from being able to marry.

"As majority leader I've been involved with the budget more than ever before ... and in these last few weeks I've been thinking a lot about where the state is," Torrico told the Oakland Tribune on Feb. 20. "Our state is clearly going in the wrong direction. We've got some challenges ahead of us. We're going to spend more on prisons than on higher education in two years. We need to have a new conversation in California about what our priorities are, and the attorney general is an office that should impact law enforcement ... and also a wide range of other issues I'm passionate about."

According to Tribune reporter Josh Richman, Torrico said that he would soon "roll out a package of 'lessons learned' bills based on the public's loss of faith in the Legislature through this year's budget fiasco."

Apparently one lesson not learned is that California's adult industry accounts for too many jobs and too much tax revenue to stand still for yet another attempt to levy an unconstitutional tax on its products.

Free Speech Coalition will be lobbying against this bill during its annual Sacramento lobbying days, Mar. 9-10.






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Mark Kernes

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