Alabama House Bill 39 would impose a 40 percent sales tax on any book, magazine, movie, sound recording or other material that is harmful to minors. There is an exemption to this tax for any movie rated “R” or “NC-17” by the Motion Picture Association of America (MPAA). There is a second sales tax of 10 percent on the sale or rental of “sexually oriented material.” This is defined as any material that contains nude images of breasts, genitals or sexual conduct. Any determination of what material is subject to the tax is to be determined by the person or business making the sale or rental and must be reported to the state authority.
The Alabama legislature adjourned its special session. The bill is dead.
The state may apply a general sales tax to speech but the U.S. Supreme Court has repeatedly held that it violates the First Amendment to impose one based on the content of the speech. The state cannot punish a producer or retailer of certain material by imposing a substantial additional tax on it.
In 1980, a similar tax scheme imposed by Mobile County, Alabama, was held to be unconstitutional in Bay News Company v. Freda Roberts, Tax Collector of Mobile County, Alabama. In the case, which was brought by Media Coalition, an Alabama judge held that a Mobile ordinance that imposed a 50-cent sales tax on any magazine that contained images of naked genitals or female breasts violated the First and Fourteenth Amendments of the U.S. Constitution and the Alabama Constitution. He issued a permanent injunction barring the defendant from collecting the tax imposed by the ordinance or otherwise enforcing it.
Also, Alabama cannot use the MPAA’s rating system to determine whether or not a tax applies to movies. While voluntary ratings exist to help parents determine what is appropriate for their children, government enforcement or adoption of an existing rating system is constitutionally impermissible. Alabama certainly cannot outsource to a private organization the power to impose a financial penalty on a movie based on the review of its content. Courts in nine different states have ruled it unconstitutional either to enforce the MPAA rating system or to financially punish a movie that carries specific rating designations.
It is also unconstitutional to ask retailers to determine what material is “harmful to minors” for the purpose of imposing the 40 percent tax. It is the job of the courts to determine whether material meets this definition and establishes that such material is illegal for minors, not an owner of a book or video store or a staff person in the Department of Revenue. This bill does not offer any court proceeding to determine the legal status of such books, magazines, movies or other content that would trigger the surcharge. This means there are no due process safeguards in place for the determination of whether the material is prohibited for minors or any appeals process available to the retailer or distributor of the content.
- On August 3, 2015, the bill was introduced  and referred to the House Committee on Ways and Means General Fund.
- Media Coalition submitted a memo in opposition  to the bill to the members of the committee on August 5, 2015. The memo explains the constitutional issues with the bill.
- Alabama adjourned its first special session. It convened its second special session on September 16, 2015. H.B. 39 has been reintroduced as H.B. 17. It is in the House.
- The Alabama legislature adjourned its special session without taking further action on the bill. The bill is dead.