Summary
New York Assembly Bill 290 would impose a $2 surcharge on each magazine, video, DVD or website registered in New York that contains “nude” images.
“Nude” is defined as any display of the breasts of a female or any portion of the buttocks or genitals of any person.
Status
The bill died in the Assembly Committee on Economic Development.
Analysis
The Supreme Court has held that the First Amendment is not limited to barring criminal sanctions against speakers. It bars the state from taxing the press whether as a whole or individual speakers, unless the tax is generally imposed. It also bars the state from placing a special burden on retailers or producers of First Amendment-protected material, such as requiring a special license that is not otherwise imposed on businesses generally.
Imposing a tax on speech based on its content is also unconstitutional. The $2 surcharge applies to speech because it contains nude images. To determine what material is taxed, the state would have no choice but to scrutinize the content of the material sold or rented. The Supreme Court ruled in 1987 that “official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press.”
The state cannot punish a producer or retailer of such material by imposing a substantial additional tax on it. In 1983, the Court held that the power to single out the press with special taxes could be used to coerce or even destroy it, and therefore, violates the First Amendment.
It is also likely unconstitutional to impose the sales tax on specific media but not others. It imposes a surcharge on magazines but not books, and on DVDs but not movies in theaters. The Supreme Court has condemned the selective imposition of a punishment on one medium but not others, or specific portions of a media but not others.
History
- On January 5, 2011, the bill was introduced [2] and referred to the Assembly Committee on Economic Development.
- The bill was carried over to the 2012 session.
- On May 14, 2012, Media Coalition submitted a memo in opposition [1] to the members of the committee, explaining the constitutional issues with the bill.
- On May 15, 2012, the committee held the bill from further consideration.