Conservative Lawmakers Want Sex Taxes. Critics Say They Are Unconstitutional
Like age verification rules continue to disrupt the adult industry—and determine the future of free speech on the Internet—a Utah lawmaker proposed a bill this week that would impose a tax on sex sites operating within the state.
Introduced by state senator Calvin Musselman, a Republican, the bill would impose a 7 percent tax on gross receipts “from the sale, distribution, membership, subscription, display, playback, and content of materials harmful to children that are produced, sold, photographed, reproduced, or otherwise supported” in Utah. If passed, the bill would go into effect in May and would also require seniors’ estates to pay an annual fee of $500 to the State Tax Commission. According to the law, the money generated by the tax will be used by the Utah Department of Health and Human Services to provide additional mental health support for youth.
Musselman did not respond to a request for comment.
A new era of American conservatism is commanding the political arena, and many US lawmakers are calling for more restrictions on adult content. In September, Alabama became the first state to levy a sex tax on adult entertainment companies (10 percent) following the passage of an age-verification mandate, which requires users to upload ID or other personal documents to verify they are not a minor before viewing sexually graphic content. Pennsylvania lawmakers are also considering a bill that would charge consumers an additional 10 percent for “subscribing and concurrent purchases from online adult content platforms,” despite already requiring them to pay a 6 percent sales and use tax on digital products, two state governors wrote in a memo in October. Some states have flirted with the idea of a sex tax in the past. In 2019, Arizona state senator Gail Griffin, a Republican, proposed taxing distributors of adult content to help fund a border wall, a priority during Donald Trump’s presidency. To date, 25 US states have passed some form of age verification.
Although efforts to criminalize participants in the sex industry have continued for years—with new laws emerging at a time of heightened Internet surveillance and censorship—targeted taxes have failed to gain widespread approval because the legality of such laws is subject to debate.
“This kind of sex tax is clearly unconstitutional,” said Evelyn Douek, a law professor at Stanford Law School. “It exposes some kind of protected speech to abuse, just because the legislature doesn’t like it—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 16 states that have passed resolutions declaring sex a public health issue. “We recognize that this is a bold assertion and not everyone will agree with it, but it is the absolute truth,” Utah governor Gary Herbert tweeted in 2016 after signing the decision. One of Utah’s first statewide responses to the rise of adult content occurred in 2001, when it became the first state to create a sexual harassment bureau by hiring an obscenity and pornography ombudsman. The position – called “porn czar” – was terminated in 2017.
“Age restriction is a complex topic that brings with it data privacy concerns and the possibility of uneven and flexible application of different digital platforms,” Alex Kekesi, vice president of product and community at Pornhub, told WIRED in a previous interview. In November, the company urged Google, Microsoft, and Apple to implement device-based authentication in their app stores and across all their apps. “We’ve seen several states and countries try to enforce age verification requirements, and all of them have failed to adequately protect children.” In order to comply with the new age gate orders, Pornhub has currently blocked access to users in 23 states.
