Media Coalition Files Amicus Brief Regarding Content-Based Tax

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On Monday, August 6, members of the Media Coalition filed an amicus brief asking that the United States Supreme Court review a decision of the New York Court of Appeals that upheld a content-based tax on communication protected by the First Amendment. The case concerns nude dancing — not Broadway musicals or opera — but the media organizations stated in their brief that the constitutional principle is the same. 

The New York Court of Appeals upheld the imposition of a sales tax on non-obscene nude dance performances, even though New York’s sales tax law explicitly exempts “dramatic or musical arts performances” including dance performances. In a strongly-worded dissent, Judge Robert Smith stated that while he found the dances “distasteful,” discrimination on the basis of the content of speech violates the First Amendment.  “I would be appalled,” Judge Smith stated, “if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently ‘cultural and artistic.’” Judge Smith’s dissent was joined by Chief Judge Jonathan Lippman and Judge Susan P. Read.

“The Supreme Court should reaffirm the principle that legislatures and taxing authorities cannot do an end run around the Constitution and punish disfavored speech by imposing a financial burden on speech that is protected by the First Amendment,” said David Horowitz, executive director of Media Coalition.  “The state is not obligated to offer a tax break for choreographed dance performances, but if it does, then the state cannot deny the break to performances it dislikes.”

The brief was filed by the American Booksellers Foundation for Free Expression, the Association of American Publishers, Inc., the Comic Book Legal Defense Fund, the Entertainment Merchants Association, and the Freedom to Read Foundation, which asked that the Supreme Court grant certiorari and hear the case on the merits, so it can reaffirm its decision in Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) that “[O]fficial scrutiny of the content of [speech] as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press.”  The case is 677 New Loudon Corp. v. State of New York Tax Tribunal, No. 13-38. 

The amicus brief noted that two years ago, the Supreme Court had held unconstitutional a California law requiring the labeling of video games with violent content, and prohibiting the sale of such games to minors, in a case brought by Entertainment Merchants Association, Brown v. EMA, 131 S. Ct. 2729 (2011).  The brief stated that discriminatory taxes based on the content of media posed a similar threat to free speech. 

The amicus brief and other documents in the case can be found on Media Coalition’s website.