Dispute delays launch of Wisconsin porn tax

Thursday, April 2, 1998

Wisconsin's sales tax on adult entertainment products, believed to be the first of its kind, failed to take effect Wednesday as planned, because government officials disputed the materials covered under the law.


The law imposes a 5% tax of “the gross receipts … on the sale of retail of adult entertainment products and services.” It further provides that the Department of Revenue “shall administer the tax.”


The problem surfaced because the state Department of Revenue interprets the law differently than the primary sponsor of the law, Rep. Dean Kaufert.


The Department of Revenue says “adult entertainment products and services” include romance novels, sexy CDs, risqué greeting cards and even baked goods in the shape of sex organs.


Kaufert contends the law, which was passed to raise money for domestic violence victims, should not apply to such items. He told The Milwaukee Journal-Sentinel: “The problem is the department's list of things to be taxed is overly broad. It's to the point where they're saying the Marshall Field lingerie department must be taxed. That certainly was never my intention.”


Ironically, the law does not cover adult movies and magazines. Kaufert says those items were removed in order to avoid First Amendment problems.


However, some free-speech experts believe the law still violates the First Amendment. Wisconsin attorney Rob Henak of the law firm Shellow, Shellow, & Glynn said: “The porn tax law is extremely vague and definitely unconstitutional. This is shown quite clearly by government officials' confusion as to how to apply and interpret the law.”


Henak, who regularly handles constitutional law cases, said that “in the area of First Amendment rights, laws must be specific as to what material is protected and, in this case, what material is taxed.”


Though Wisconsin is the first state to enact a sales tax on adult products, other states, including California and Utah have considered similar proposals. California's measure died in a legislative committee.


California attorney Jeffrey Douglas, who handles many First Amendment cases in the adult entertainment context, said: “These tax laws on adult products are unconstitutional.


“The U.S. Supreme Court has said since the 1920s that you may not single out a particular form of communication for taxation. Such laws show that the state is disapproves of a particular message, a principle anathema to the First Amendment,” Douglas said.


Cate Zeuske, the head of the Wisconsin Department of Revenue, says the tax will not take effect until officials can sort out the problem.


— The Associated Press contributed to this report.