The U.S. Supreme Court is considering a review of the 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from the New York Supreme Court that the state government may tax exotic dancing but not other forms of dancing. Free speech advocacy group Media Coalition thinks that if the Supreme Court were to review this decision, it would likely overturn it because it violates the First Amendment. The group recently filed an amicus brief with the court urging it to review the case. New York's tax authority decided to apply special tax rules on establishments that allow women to perform private lap dances and pole dances.
You might be thinking, what does this have to do with anything even remotely related to gaming? Well, if a state agency or government can have special tax rules for specific types of art or free expression, then it can be applied to almost anything it finds objectionable or offensive – like movies or video games that depict violent or sexual acts, for example. It gives the state carte blanche to decide – using tax law – what forms of free speech may be treated adversely.
As the law blog Jassy Speak First (the creation of lawyer Jean-Paul Jassy, who represents media companies on First Amendment matters) points out in discussing this case – it also has implications in other states where similar discriminatory tax policies are either already being used or considered. In fact, Supreme Courts in Illinois, Utah, and Texas have already backed these kinds of tax policies, and the city of Philadelphia recently decided to extend its "amusement tax" on lap dancing.
We thought it was interesting that Media Coalition filed an amicus brief (PDF) with the Supreme Court asking it to review the New York State Supreme Court's decision, so we tracked down its executive director David Horowitz to get more details.
Horowitz told us in an email interview that his group filed the amicus brief because it was "concerned that the ruling in 677 New Loudon opens the door to governments imposing taxes on speech that it dislikes or is unpopular."
Horowitz also pointed out that the State of New York Tax Tribunal didn't simply levy a tax on exotic dancing, but instead altered the industry's tax status:
"The Tax Tribunal didn’t necessarily target exotic dancing rather it ruled that this type of dancing did not qualify for a tax exemption for venues that provide dance performances," he told us.
Horowitz also told us that "the government cannot use its taxing power to punish speech that is First Amendment protected," when asked if any forms of speech or free expression should ever be taxed based on content.
Media Coalition is hoping that the Supreme Court will hear the case, because it would likely rule that the lower court erred in its ruling and that the Tax Tribunal's decision violated the First Amendment.
"We would like to see the Supreme Court grant certiorari and hear the case on the merits so it can reaffirm its ruling in Arkansas Writers’ Project, Inc. v. Ragland, (481 U.S. 221, 230 -1987) that the imposition of taxes on media based on the content of the speech is incompatible with the First Amendment," Horowitz said.
But what if the Supreme Court refuses to review the case, or worse, agrees with the lower court's ruling? Horowitz thinks it could be a slippery slope where other forms of expression might get unwanted attention from the state's tax agency.
"It certainly could be a slippery slope," he said. "States could impose taxes on types of speech they dislike such as video games or movies or types of content they dislike whether it is depictions of violence or sexual activity."
You can learn more about the work that Media Coalition does by visiting mediacoalition.org.
We hope that other advocacy groups who believe in defending the First Amendment will considering filing similar amicus briefs with the Supreme Court as soon as possible.