677 New Loudon Corporation v. New York Tax Appeals Tribunal

134 S. Ct. 422 (2013) (cert. denied), 19 N.Y.3d 1058 (N.Y. Ct. App. 2012)

On October 15, 2013, the Supreme Court denied 677 New Loudon’s petition for a writ of certiorari [2].

On August 6, 2013, members of Media Coalition filed an amicus brief asking the Supreme Court to grant certiorari in 677 New Loudon Corp. v. State of N.Y. Tax Appeals Tribunal and hear the case on the merits.

Media Coalition amicus brief supporting certiorari [1]

Media Coalition press release

On July 5, 2013, 677 New Loudon Corporation filed a petition for certiorari [5] that asked the Court to decide the critical question of whether a State may discriminate in taxation among First Amendment-protected materials based on the perceived value of their content. The Media Coalition members who signed the petition are concerned that ruling of the New York Court of Appeals could allow the state to punish unpopular or disfavored speech by taxing it.

On October 23, 2012, the New York Court of Appeals, the state’s highest court, upheld the ruling below that nude dance performances were not eligible for a tax exemption for “dramatic or musical art performances” including dance performances.  Three Judges from the New York Court of Appeals, Judge Smith, Chief Judge Lippmann, and Judge Read dissented stating, “that’s sort of discrimination on the basis of content would surely be unconstitutional. It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.”

Initially the case was heard before an administrative judge who ruled in favor of the Petitioner. However the State of New York Tax Tribunal reversed, ruling that content-based discrimination was permissible.