Summary
South Carolina Proviso 89 would impose a 20% tax on printed matter that contains “frontal nudity.” “Frontal nudity” is defined as any material that includes any exposed genitalia or the female breast if lasciviously displayed and that is prohibited for minors.
Analysis
The bill is an unconstitutional content-based tax on First Amendment-protected speech. The Supreme Court has struck down legislation that tax or financially punish speech based on its content.
Even if the tax was narrowed to material that is illegal for minors under South Carolina law, it remains an unconstitutional tax and is also a violation of due process protections because it is the job of the courts, not an owner of a bookstore or newsstand or a staff person in the Department of Revenue, to determine if material is illegal for minors. This provision does not offer any legal proceeding to determine the legal status of such books or magazines. 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.
Actions on the bill
- The proviso [3] is included in the proposed budget in March 2008.
- Media Coalition submits a letter in opposition [2] to the bill’s sponsor, explaining the constitutional issues.
- In April 2008, Media Coalition submits a memo [1] to all the members of the South Carolina Senate, reiterating the concerns expressed in the letter to the sponsor.
- The proviso is withdrawn from the proposed budget prior to passage.