At last, a tax I can heartily support

A tax on porn in California? Eugene Volokh doubts its constitutionality. He asserts that "the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography."

For those of you who are not corrupted by a law school education and not familiar with the Supreme Court's bizarre obscenity doctrines, simply know that the Court in its infallible judgment claims to discern a difference between obscene porn and merely erotic porn. Merely erotic porn is constitutionally protected, while obscene porn is not.

If the California tax proposal is over-inclusive, that problem can be remedied. The bill can be amended to exclude so-called "soft porn." It could, for example, provide a defense to a claim for non-payment of the tax that the material to be taxed is protected under extant Supreme Court obscenity rules. The bill would then permit men to buy not-too-naughty magazines, with all of their manifest artistic and literary value, free of the 25% tax. The men are happy, the Supreme Court is happy, and the people of California can tax the heck out of an industry that objectifies women's bodies, encourages vicious conduct, and swamps millions of men in an unhealthy addiction.

The amended bill would have the addional, ancillary effect of demonstrating how silly and unworkable the Supreme Court's obscenity jurisprudence is. Amended to exclude constitutionally-protected material, the tax bill would generate massive litigation over the question what counts as obscene porn and what constitutes merely erotic porn. Dockets in California would expand accordingly. And that's a good thing. Let the courts bear the costs of their own forays into obscenity regulation.