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Alabama Trying to Balance Its Budget With Porn Tax

By Christopher Coble, Esq. on September 15, 2015 | Last updated on March 21, 2019

How do you balance a state budget that has you spending $250 million more than you'll take in? Most conservative lawmakers would slash funding to education and social services or roll back Medicaid or social security benefits. The last thing you'd expect a Republican-led state legislature to do is raise taxes.

But that's what Alabama is doing. And not just any tax -- Alabama is planning on taxing porn to the tune of 40%. But don't worry, the idea doesn't just sound silly, but it might not work at all and be unconstitutional to boot. Roll Tide!

I'll Know It When I See It

State legislators have until October 1 to pass a balanced General Fund budget or face a state-wide government shutdown. Perhaps that has led to a little desperation on the part of State Rep. Jack Williams and his 26 cosigners to introduce a bill taxing the sale of "sexually oriented materials."

The porn tax bill defines sexually oriented materials as:

any book, magazine, newspaper, printed or written matter, writing, description, picture, drawing, animation, photograph, motion picture, film, video tape, pictorial presentation, depiction, image, electrical or electronic reproduction, broadcast, transmission, video download, telephone communication, sound recording, article, device, equipment, matter, oral communication, depicting breast or genital nudity or sexual conduct.

If that sounds like an awfully broad range of material, you're definitely right. And if that sounds possibly illegal, you might be right.

No Free Lunch

Aside from all the issues and costs of implementing a tax on what most consumers purchase in private (not to mention whether the amount the proposed tax would raise could actually fill the hole in Alabama's budget), questions remain as to the legality of the tax.

There is a doctrine, known as "void for vagueness", that invalidates statutes that are either too broad or too hard to understand. If a person of normal intelligence can't distinguish between what is and isn't allowed under the law, the law could be held unconstitutional.

Considering Alabama's porn tax could cover everything from Internet porn to "Fifty Shades of Grey" to the Venus de Milo, it will certainly face some legal challenges. And courts are notoriously protective of the First Amendment, which could be impacted by taxing artistic works.

The porn tax bill still needs to get through the Alabama House and Senate, as well as the governor. After that, Alabamans won't get a free pass on their PornHub consumption following football team losses.

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