Utah’s Proposal To Tax Online Pornography Is A Civil Liberties Disaster Waiting To Happen
from the bad-ideas-stupider-ideas dept
Republican lawmakers in Utah have long been on the cutting edge of shitty policymaking when it comes to regulating the internet. The latest chapter in that legacy is a proposed tax on porn and adult content purchased in the state’s digital space.
Originally proposed by a pair of Republican lawmakers in the Utah state legislature earlier this year, Senate Bill (SB) 73 would levy a so-called “material harmful to minors” tax at 2 percent on revenues generated by the sale of online porn (it was originally 7 percent). Having been amended and passed through the state Senate with considerable support, SB 73 is on track to clear the hurdles of the House of Representatives and be signed into law by Gov. Spencer Cox, a Republican and staunch anti-pornography activist like the bill’s sponsors.
This activism from Gov. Cox and the sponsors of porn tax bill—Republican state Sen. Calvin R. Musselman and state Rep. Steve Eliason—could presage a far more corrosive and expansive campaign against civil liberties and key freedom of expression protections that cover sexually-related speech.
First off, SB 73 would fund a variety of efforts for Utah’s state government. Such efforts benefiting from the funds under the proposal would include enforcement efforts for the state’s social media and pornography age verification laws.
But the bill goes further, especially after several rounds of being amended in the Senate and the House to include the mention of web traffic sourced from virtual private networks (VPNs) and other proxies. This bill would make it illegal to circumvent content blocks implemented by platforms due to local age verification laws, making it punishable by a bevy of civil penalties. Nonetheless, what goes well beyond extreme is that there is a provision in the bill that would also make it illegal for websites covered by age verification laws (e.g., a porn site) to offer Utah-based users information about using VPNs to get around any content blocks securely.
Consider the following language in the current form of Senate Bill 73 regarding VPN “facilitation”:
“A commercial entity that operates a website that contains a substantial portion of material harmful to minors may not facilitate or encourage the use of a virtual private network, proxy server, or other means to circumvent age verification requirements, including by providing: (a) instructions on how to use a virtual private network or proxy server to access the website; or (b) means for individuals in this state to circumvent geofencing or blocking.”
This goes far beyond anything I’ve seen in recent legislative trends in state legislatures controlled by conservative GOP politicians. The bill is similar to a law that is on the books in Alabama which levies a 10 percent levy on all porn websites in that state’s digital space, paired with the extra set of legal requirements for adult performers to have notarized consent forms that contradicts existing federal record-keeping laws.
Utah’s bill doesn’t go that far on the concerns of records, but it certainly conjures up civil liberties concerns. Aside from the glaring privacy concerns related to age verification tech, Utah has no right to restrict the communications of a private company to its customers. This goes double for attempts to supersede interstate commerce on a category of products and services that are lawful. And don’t forget the dimensions of the porn tax. SB 73’s approach is expansive and blatantly violates the First Amendment rights of millions of people, not just those who live within the state boundaries of Utah.
The tax is a textbook “sin tax” a jurisdiction would levy on something like alcohol, tobacco, and gambling. But what is different between the purchase of a six-pack of beer versus wanking off alone in your home is that buying that beer from the liquor store isn’t necessarily considered expressive in its nature. Producing, selling, and consuming pornography are matters of protected sexual speech so long nothing illegal and criminal occur. Porn taxes like the one proposed in SB 73 explicitly outline “covered entities,” to include all entities that sell adult content through clip sales, subscriptions, and fan sites. And with total Utah sales, revenues are then taxed at the 2 percent levy and then paid to the state each year.
This might be an incidental bump in the road for many of the larger platforms, like Pornhub or OnlyFans, but this type of policymaking is a vindictive ploy to make operating a small and medium business in this space excruciatingly harder. I do see the Utah bill passing this legislative session, which would lead to a potential legal standoff in a federal courthouse. But I am not holding my breath for anything more beyond that.
Michael McGrady covers the tech and legal sides of the online porn business.
Filed Under: 1st amendment, free speech, porn tax, sin tax, state laws, utah, vpns
Comments on “Utah’s Proposal To Tax Online Pornography Is A Civil Liberties Disaster Waiting To Happen”
“the power to tax is the power to destroy!”
I’m never paying for porn again if Utah takes a cut. It’s bad enough my federal tax dollars go to that Taliban shit hole.
“A commercial entity that operates a website that contains a substantial portion of material harmful to minors may not facilitate or encourage the use of a virtual private network, proxy server, or other means to circumvent age verification requirements […]”
So if a nonprofit organization (not a commercial entity) with an innocuous website decided to help out by providing instructions, links, software, etc., that would not violate this clause.
That whole “material harmful to minors” bit may be aimed at pornography at the moment, but it also means the law could—and likely will—be turned against even the most anodyne content featuring queer people. The whole point of laws like this, especially with that specific “material harmful to minors” phrasing, is to eventually push queer people out of the public eye by making their mere existence “harmful to minors”.
Porn is always the canary in the coal mine of free speech. Would-be censors and moral guardians will always try to make defending porn—especially weird porn that involves certain fetishes/kinks—embarassing so no one will feel compelled to defend it. And once porn is allowed to be censored, well, what’s wrong with censoring one more kind of speech that’s “harmful to minors”? The slippery slope argument isn’t fallacious when the slope actually exists, and porn always sits at the top of the censorship slope.
Re:
This, and so much more. It’s just another “gateway” law, where they cut a door hole in the Constitution and general freedom so they can outlaw porn and anything else they don’t like later, after the Constitution and all sense become void.
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The entire harmful to minors label can go far beyond sexual content and could be attributed to education material like slavery was a terrible institution as well as Jim Crow and segregation.
Right-wing parents don’t want to have their children exposed to reality if they can help it.
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Sure. But it could also be used against every site airing trumps words.
Re: Re:
This law would still pose a threat to free speech even if it were in in the hands of people whose politics I generally share.
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They already gave away the game by referring to LGBT people as ‘obscene’. While showing that they don’t know the meaning of the word, just that it was an abusable cutout for the first amendment.
I am sure huge numbers of minors pay money for porn. Huge.
But, yeah, the whole point of this is to make it so hard to be in the porn business that nobody can do it at all. Same for age verification, originally, although at this point enough useful idiots have jumped on the bandwagon to let that one continue under its own power.
I wonder what a search of the bill’s supporters’ hard drives would turn up?
There is, as far as I understand, no foolproof way for a website to be sure that a visitor is accessing via VPN. So, the only way for a website to avoid liability under this law would be to apply Utah’s ID-checking demands to all visitors from anywhere in the world.
I propose a tax on idiocy. (Yes, I decide what’s idiotic.)
Utah and porn
Do the Mormons have a special tax for their “special” underwear? Asking for a friend…
Whenever these types of “do something” and “nerd harder” bills come up, I just imagine a legislator sitting in an office having an awkward conversation with a younger, more tech savvy aide.
“We should outlaw porn!”
“Sir, we can’t actually do that. The 1st Amendment allows…”
“Then we should tax porn!”
“There’s no way to do that in a practical…”
“Sure there is! Just make them pay us when Utahns buy porn.”
“People will just use VPNs.”
“Then outlaw VPNs!”
“You can’t outlaw a VPN, then your bank wouldn’t be able to…”
“I don’t care! We’ll just make it illegal and the nerds will figure it out or else they’ll go to jail! Children shouldn’t learn about porn or gay people or transgender people! They should just learn about trad wives submitting to husbands in patriarchal rape-culture unions where women are treated like property…”
[Okay, maybe they wouldn’t be that honest towards the end…]
Don’t sweat it, the porn fairy will leave some on the woods for kids to find.
Kids will be forced to see porn the old fashioned way. Make their own.
It is always surprising how “the party of freedom” is so against people’s freedoms.
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They want you to be “free” to pick from a very, VERY narrow slate of options that are palatable to their cultural biases and wallet. And then they want you to thank them for the privilege.
Who now?
MusselMan & Cox would be a good name for a porn site. Just sayin’
Not quite
Utah has no right to restrict the communications of a private company to its customers
Utah does in fact have some right to restrict the communications of a private company to its customers. While this is balanced against First Amendment concerns, state governments do in fact have the right to regulate what companies can say in a business context, as well as mandate the inclusion of certain language in certain circumstances. The idea that state governments can’t regulate commercial speech at all is total nonsense.