Conservative lawmakers want to tax pornography. Critics say they are unconstitutional

Such as age verification laws Continuing the dismantling of the adult industry — and determining the future of free expression online — a Utah lawmaker proposed a bill this week that would impose a tax on porn sites operating within the state.

The bill, introduced by Republican Sen. Calvin Musselman, would impose a 7 percent tax on gross revenues “from sales, distributions, memberships, subscriptions, performances and content amounting to material harmful to minors that is produced, sold, photographed, produced or otherwise established” in Utah. If passed, the bill would take effect in May and would also require adult sites to pay a $500 annual fee to the state Tax Commission. Under the legislation, funds generated from the tax would be used by the Utah Department of Health and Human Services to provide more mental health support to teens.

Musselman did not respond to a request for comment.

A new era of American conservatism is taking over the political arena, and more US lawmakers are calling for additional restrictions on adult content. In September, Alabama became the first state to impose a pornography tax on adult entertainment companies (10%) after passing age verification mandates, which require users to upload ID or other personal documentation to verify they are not minors before viewing sexually explicit content. Pennsylvania lawmakers are also eyeing a bill that would impose an additional 10 percent tax on consumers on “subscriptions and one-time purchases from online adult content platforms,” despite already requiring them to pay a 6 percent sales and use tax to purchase digital products, two state senators wrote in a memo in October. Other states have considered the idea of ​​taxing pornography in the past. In 2019, Arizona Republican Sen. Gayle Griffin proposed taxing distributors of adult content to help fund a border wall, a key priority during Donald Trump’s first presidential term. So far, 25 US states have approved an age verification form.

Although efforts to criminalize participants in the sex work industry have been ongoing for years — with new regulations emerging at a time of tightening internet censorship — targeted taxes have failed to gain widespread approval because the legality of such laws is up for debate.

“This type of tax on pornography is blatantly unconstitutional,” says Evelyn Dweck, an associate professor of law at Stanford Law School. “It singles out a certain type of protected expression for unfavorable treatment, just because the legislature doesn’t like it — and that’s exactly what the First Amendment is designed to protect against. Utah may not like porn, but as the Supreme Court affirmed just last year, adults have a fully protected right to access it.”

Utah, Alabama and Pennsylvania are among the 16 states that have adopted resolutions declaring pornography a public health crisis. “We realize this is a bold assertion that not everyone will agree with, but it is the full truth,” Utah Gov. Gary Herbert tweeted in 2016 after signing the resolution. One of Utah’s first statewide responses to the proliferation of adult content occurred in 2001, when it became the first state to create an office for sexually explicit issues by appointing an ombudsman for complaints related to obscenity and pornography. The position – dubbed the “porn czar” – was terminated in 2017.

“Age restriction is a very complex topic that brings with it data privacy concerns and the potential for uneven and inconsistent application to different digital platforms,” Alex Kekesi, vice president of brand and community at Pornhub, told WIRED in a previous conversation. In November, the company urged Google, Microsoft and Apple to enable device-based verification in their app stores and across their operating systems. “We have seen many states and countries attempt to impose platform-level age verification requirements, all of which have failed to adequately protect children.” To comply with the new age gate mandates, Pornhub has currently blocked access to users in 23 states.