West Virginia House Bill 2119 would impose a $1 tax on the sale or rental of any material deemed obscene based on a definition in the legislation. The determination of whether the material meets the definition for obscenity and is subject to the tax would be made by the retailer and self-reported to the state.
West Virginia does not have a law criminalizing the distribution of obscene speech to adults but does allow county commissions to enact ordinances making it illegal to sell or display obscene material. It does have a law that bars dissemination of obscene material to minors.
The West Virginia legislature adjourned its 2014 session. The bill is dead.
Obscene speech that meets the Miller test is not protected by the First Amendment and may be criminalized or taxed, but speech may only be deemed obscene by a court with the full array of due process protections guaranteed by the Fourteenth Amendment. This bill does not provide any judicial procedure to determine if a material is obscene and subject to the sales tax. Instead, it asks retailers to self-report what material they believe meets the test for obscenity. It is not the job of an owner of a book or video store or even a staff person in the Department of Revenue to make this determination.
Absent a judicial determination that the speech is obscene, it is presumed to be protected by the First Amendment. Therefore, the bill is a content-based tax on protected material since it does not provide any judicial process to make this judgment. It is generally unconstitutionally to impose a tax on speech based on its content.
The bill will also inevitable have a substantial chilling effect on retailers of material with sexual content that is not obscene. It means retailers will self-censor by declining to carry material that is protected by the First Amendment. The bill requires the retailer to make the judgment of whether a book or movie is subject to the tax at the risk of a fine or prison for tax evasion if the West Virginia Tax Commissioner disagrees with the retailer’s judgment. Some book sellers and video store owners will err on the side of deeming any material obscene and voluntary paying an unconstitutional tax on protected speech rather than risk any criminal or civil punishment for tax avoidance. The alternative is to decline to carry sexual material to avoid the risk of being wrong about whether the material is obscene. Other retailers will decline to carry content that is arguably subject to the tax to avoid the onerous burden of additional paperwork and reporting requirements imposed by the bill.
The bill could also violate retailers’ right against self-incrimination. The bill would require a bookseller or video store owner to report each sale of material that he or she believes is obscene. The retailer is being forced to report that he or she has likely committed a crime if the store is in a county that has a local ordinance banning the sale or rental of obscene material, or if the sale was made to a minor.
- On January 9, 2014, the bill was introduced  and referred to the House Committee on Finance.
- Media Coalition submitted a memo in opposition  to the members of the committee on February 6, 2014, explaining the constitutional issues with the bill.
- The West Virginia legislature adjourned its 2014 session. The bill is dead.