Let’s Not Tax the First Amendment: Commentary by Dr. Larry Burriss

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Newspaper Tax

By Dr. Larry Burriss
03/11/2019

Back in 1936 the United Sates Supreme Court ruled that different tax rates for different kinds of newspapers are unconstitutional. States can tax all newspapers, or the state can tax no newspapers, but the taxation has to be applied equally. The law specifically dealt with income derived from the sale of advertising, but the court nevertheless said all newspapers had to be treated the same.
The idea, the court said, was that unequal tax rates could work to drive some newspapers out of business, thus inhibiting the free flow of information the court found so important to a democracy.


In several other cases the court has refused to distinguish between types of periodicals and other forms of expression, saying different types of free speech cannot be taxed differently. Such taxes, the court has said, unconstitutionally burden the First Amendment.
Curiously, Tennessee has a law that exempts newspapers and periodicals from sales taxes, but only for publications distributed at least twice a month. Which, of course, means monthly publications are subject to sales tax. But state representative Mike Sparks has introduced legislation to exempt monthly periodicals from this tax.

As you might expect, some people have tried to argue that monthly periodicals are somehow fundamentally different from dailies or weeklies. But the court has consistently refused to see such a distinction, relying, instead, on the idea of the free flow of information. Daily newspapers provide information necessary to informed debate on public issues, weekly newspapers and magazines provide the same kind of information, and monthly periodicals provide the same kind of information as well.

(Dr. Larry Burriss speaks of the importance of the First Amendment and our culture of fear to speak up on issues)
And by the way, small mom-and-pop operations that distributed so-called “shoppers” also provide information of interest to the public.
Since our concern should be about the free flow of information, not about how often information is delivered, it seems reasonable for the state to amend the tax coded to include monthly, as well as daily, weekly and bi-weekly publications.
I’m Larry Burriss.

(Larry Burriss, professor of journalism, teaches introductory and media law courses. He holds degrees from The Ohio State University (B.A. in broadcast journalism, M.A. in journalism), the University of Oklahoma (M.A. in human relations), Ohio University (Ph.D. in journalism) and Concord Law School (J.D.). He has worked in print and broadcast news and public relations, and has published extensively in both academic and popular publications. He has won first place in the Tennessee Associated Press Radio Contest nine times.

Burriss has served as director of the School of Journalism, dean of the College of Mass Communication and president of the MTSU Faculty Senate. He was appointed by Gov. Phil Bredesen to serve on the Tennessee Board of Regents. He was a lieutenant colonel in the U.S. Air Force and served on active duty in Mali, Somalia, Bosnia, Central America, Europe and the Pentagon.)

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