Law professor Eugene Volokh takes a look at the proposed 25% tax on porn stuff in California and concludes its likely unconstitutional.

The backers of the law seem to rely on the Court”s “erogenous zoning” cases, which allowed special zoning restrictions on sexually themed entertainment on the grounds that this entertainment causes “secondary effects,” in the form of crime by patrons and a decline in neighboring property values. But this law is not a zoning restriction, and would extend to places that have no consumers at all. The Court might be willing to recognize other effects as “secondary,” such as the possible harms (e.g., sexually transmitted disease risks, or even mental health risks) to performers. But the law seems to be quite ill-fitted to avoiding or remedying such harms, given that the law isn’t at all calibrated to these harms: For instance, the law applies to distribution of porn created outside California, which creates problems that aren’t remotely remediable through a tax paid to California authorities.

May 27, 2008   //   Liberty   //   Comments Off   //