Utah’s Proposal To Tax Online Pornography Is A Civil Liberties Disaster Waiting To Happen

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.