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Washington State Rep. Proposes Porn Tax

18.5 percent sales tax inspired by failed California legislation

Washington State Rep. Proposes Porn Tax

SEATTLE - Add Washington to the list of states desperately trying to find ways to plug holes in their budget deficits ... and looking to the adult industry to bail them out, this time, by way of a "porn tax."

And the tax's main proponent, State Rep. Mark Miloscia (D-Federal Way), is no piker: He wants to add 18.5% to the price of adult materials, on top of the state's existing sales tax rates, which vary from county to county and city to city. In Miloscia's own district, for instance, an 18.5% increase in the sales tax at the state level would mean a total tax of 27.5% for all "adult entertainment materials and services," which means everything from adult DVDs, video- and audiotapes, to magazines like Playboy and Hustler to audiotext services to (possibly) adult novelties, depending on the definition of the term "paraphernalia."

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Also included ("but not limited to") are "motion pictures, photographs, computer programs, and cable television services". This would appear to infringe on customers' First Amendment rights to view such materials, and would therefore be a form of content-based discrimination under the First Amendment.

Specifically excluded, however, are sexually explicit novels and other publications that contain no photos, as well as any videos that "do not contain any explicit sex of the type that would be rated 'X' using the standards existing on January 1, 2009, of the [M]otion [P]icture [A]ssociation of America, [I]nc." That's a bit confusing, since the MPAA has not had an "X" rating for more than 20 years - which could conceivably mean that any movie containing sufficient sexually explicit content, real or simulated, to garner an "NC-17" rating from the MPAA could also be subject to the tax.

The bill contains no provision for taxing adult content online, though that too conceivably could be covered by "not limited to."

Finally, "Notwithstanding subsection (6)" of the current bill, "adult entertainment services are a sale at retail for the purposes of this chapter and chapter 82.12 RCW." The most likely meaning of that section would be to extend the tax at least to door fees charged at adult nightclubs and cabarets, and possibly even the tips earned by dancers at such clubs.

The justification for such increases, according to the text of House Bill (HB) 2103, is that "the sale and use of adult entertainment materials and services result in increased costs to the state through the provision of increased governmental services, including human services and criminal justice services," although the bill cites no studies or other data to support the assertion; just that "The legislature finds ..."

The bill also claims that the revenues from the tax would be "dedicate[d] to crime victims'  compensation, with an emphasis towards providing services, support, or  therapy to those children who are victims of sexual abuse" - again, with no studies cited to link the materials to their so-called "victims."

However, there is reason to believe that the purpose of the tax as stated in the bill itself may be false.

The Seattle Times reported that "revenue collected on sales and use of adult entertainment materials and services would be used to help fund the General Assistance-Unemployable, a safety net program that Gov. Chris Gregoire has proposed cutting."

MSNBC likewise reported, "With the state's $6 billion deficit, thousands of mentally and physically disabled residents could soon lose their state assistance. The representative wants his porn tax to cover those cuts."

Neither of those purposes, of course, has anything to do with adult entertainment or even the alleged adverse secondary effects thereof, and such a tax would likely be found illegal on that basis.

When asked if the taxes might hurt the adult industry, Miloscia told MSNBC, "If we had to lose an industry or lose a business or two, this probably wouldn't make the top of the list like Microsoft or Boeing." 

In an interview with the Seattle Times, Miloscia remarked: "For me it is a no brainer. People say this will cause business to go out of state; who is going to care about that?"

Miloscia also claimed that his bill was "inspired by California, which he said has a 25 percent adult entertainment tax" which "generated almost $250 million for the state last year." In fact, California has no specific adult entertainment tax.

Perhaps Rep. Miloscia will want to do a bit more homework before making false statements to the press, and putting incorrect information in proposed legislation.






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Mark Kernes

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