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A Tax on Porn?; if this Tennessee politician has his way

NASHVILLE – State Rep. Stacey Campfield [pictured] said last week he will introduce legislation this year to impose a tax on pornography, dedicating the revenue toward eliminating the state sales tax on groceries.

Some people questioned about the proposal, including Gov. Phil Bredesen, said it may be unconstitutional.

Campfield, R-Knoxville, said the proposed tax would apply – at the least – to sexually oriented materials that legally cannot be sold to persons under age 18. This would cover videos, books, magazines and sexual devices, he said.

Movies with an “R” rating or lower would not be taxed, but those with an X rating would, he said.

The bill is in the process of being researched and drafted, he said, with many details unresolved. Campfield said he is “exploring” a broader definition of what would be taxed, perhaps adding exotic dance clubs – “lap dancing and that sort of thing.”

The size of the tax is also yet to be determined, Campfield said, but the goal is to raise enough revenue to allow repeal of the present 6 percent state sales tax on grocery food without damaging the state budget.

“It’s a different swap tax: Remove the sales tax on groceries and raise the tax on pornography,” said Campfield.

An earlier tax swap bill, which failed to pass in the last legislative session, would have raised the tax on cigarettes to end the sales tax on food.

Legislative estimates are that the sales tax on groceries generates about $450 million per year. Campfield said he expects research to determine the extent of the pornography business sales in Tennessee, then use that data calculate the rate for the proposed new tax.

“The porn industry is probably much more powerful and much more profitable than most people realize in Tennessee,” said Campfield.

Dr. Stan Chervin, an expert on state taxation who serves as senior research associate for the Tennessee Advisory Commission on Intergovernmental Relations, said there is “no way” a pornography tax would generate enough revenue to allow repeal of the food tax.

“What’s he going to do? Charge $2 million on a Playboy magazine?” asked Chervin.

Chervin, Bredesen and Hedy Weinberg, executive director of the American Civil Liberties Union in Tennessee, all said such a tax could face legal challenges.

The governor was asked about the proposal during an impromptu encounter with reporters. His initial quip:

“The Revenue Department will handle it. They’ll know it when they see it.”

Bredesen said he believed such a tax would be “constitutionally suspect” but that he would “be happy to sit down with Rep. Campfield and discuss it.

“I hope he will take a quick look at the Constitution before he comes by the office,” said Bredesen. “I’d like it if we could put a tax on articles that are critical of the governor.”

Weinberg said Campfield’s proposal is “certainly a creative idea, but it does raise a lot of questions about chilling one’s First Amendment rights.

“A question is, ‘What is pornography?’ And a broader question is, ‘Who is going to decide what is pornography?’ ” she said.

The rate of the pornography tax also would be a concern, Weinberg said, particularly “if the goal is to make it so costly that no one can afford it.”

Campfield said that is not the case. He contrasted the proposal to legislation proposed by Sen. Doug Jackson, D-Dickson, that would outlaw broadcast of advertising promoting videos deemed as obscene and harmful to minors, with “Girls Gone Wild” cited as an example.

“My bill is a tax. His (Jackson’s) is a ban,” said Campfield. “If somebody wants to buy ‘Debbie Does Dallas,’ www.xxxdeepthroat.com they can pay a little extra for it.”

Apparently, Utah is the only state that imposes any similar tax. That state’s “sexually explicit businesses and escort services” tax, enacted in 2004, is levied at a rate of 10 percent. It covers exotic dance clubs.

Tracy O’Neill, who represents such clubs as lobbyist for the Tennessee Cabaret Association, said the Utah law had been challenged in court and has produced no revenue. She said the association’s stance on Campfield’s proposal would “depend on how it’s written.

“I can tell you they would oppose adult entertainers being classified as sexually oriented,” she said. “They don’t sell sex, they sell a fantasy.”

House Finance Committee Chairman Craig Fitzhugh declined to state a position on Campfield’s proposal but observed that “sin taxes” are more popular than others. Fitzhugh said he has unsuccessfully sponsored a proposed tax on the lottery, a form of gambling, while others are pushing increases on tobacco and alcohol taxes.

“We could bundle up a bunch of sins and get a pretty good flow of revenue,” he said.

At least one Knoxville adult-business manager is skeptical of Campfield’s proposal.

Kristi Dunn, store manager of Inserection Adult Fantasy Store, 501 N. Broadway, does not think the proposed tax will be of much concern to the store’s patrons.

“My question is, what good would it do?” Dunn said. “Unless it’s a considerable difference, I don’t think it would affect anything here.”

Inserection, which Dunn said is the first adult-oriented retailer she has worked for, sells DVD movies, magazines and sexual devices that cannot be sold to minors. Minors are not allowed through the door.

Dunn said DVDs and sex toys provide most of the store’s revenue. If a product costs $25 and lasts several years, she said, then a tax wouldn’t deter customers.

She compared the store’s stock to cigarettes, saying that a high tax does not deter use of tobacco.

“I think (lawmakers) just target stuff that is a big moneymaker,” Dunn said. “You don’t really hear them talk about a tax on items that aren’t very popular.”

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