MONTGOMERY - The Alabama Senate is close to passing Senate Bill 404, the Entertainment Industry Incentive Act of 2008, which is designed to lure movie, video game, TV and even Web-only productions to the "Heart of Dixie" through tax incentives, so that viewers will get to see Alabama's "attractive natural resources, a growing workforce, and other resources attractive to the entertainment industry."
Seems officials in the state are smarting from the fact that movies like Forrest Gump, Fried Green Tomatoes and particularly Sweet Home Alabama, all of which feature scenes supposedly taking place in Alabama, weren't in fact filmed in the state.
Included in the incentive package for "qualified producers" are a tax rebate of 25% of the "State-Certified Production's Production Expenditures excluding payroll paid to residents of Alabama" plus a 35% rebate on the taxes of "all payroll paid to residents of Alabama for the State-Certified Production" - as long as the production costs at least half a million bucks and not more than $10 million.
Of course, not every production would be a "qualified production" under the new law - notably, "any production for which records are required to be maintained under 18 U.S.C. §2257 with respect to sexually explicit content." We've commented previously on the unconstitutionality of such discriminatory measures - but the Alabama Education Association (AEA) has added a new wrinkle.
According to an article in the Tuscaloosa News, the AEA has said it won't support SB 404, which could easily bring millions of bucks and hundreds of jobs into the state, unless the Senate also passes a version of House Bill 153, which would levy a 30% excise tax (over and above existing sale and use taxes) "on the total charge for an adult telephone conversation and the gross receipts resulting from the sale of adult novelty items and visual pornography."
The tax would be levied on phone sex calls, any "sexually oriented materials, devices or paraphernalia," and any video, magazine or website depicting "Any act of sexual intercourse, masturbation, urination, defecation, lewd exhibition of the genitals, sado-masochistic abuse, bestiality, or the fondling of the sex organs of animals." And in case anyone wonders whether that means hardcore only, AEA executive secretary Paul Hubbert assured the press that, "People who buy Penthouse and people who buy Playboy magazine will pay the tax."
The AEA is worried that giving tax breaks to the production studios - breaks which many claim are needed to bring productions into the state - will impact the bottom line of the education budget unless there's some compensating tax increase on something - and why not porn?
Similar taxes have been proposed in several other states, including California, which failed to vote the latest effort by Asm. Charles Calderon, AB 1551, out of committee last term. Such taxes are unconstitutional, since they single out one form of expressive conduct - pornography - for taxation while leaving non-sex materials alone.
A $5 fee for entering strip clubs in Texas - described by Texas attorney Steven Swander as simply "another form of tax" - was recently struck down for another reason that seems common to such tax proposals: There was no link between the business being taxed and the use to which the revenue would be put; in Texas' case, funding for assistance to sexual assault victims and health care for the poor.
The legislature is not required to link the two causes, and the incentive bill could probably pass without the AEA's support, since several producers have expressed interest in shooting in the state if the incentives are in place.
"If you pass this [incentive bill], the next day you'll have Hollywood calling," said Birmingham producer Alan Hunter.
Rep. Richard Lindsey, the chairman of the House Education Appropriations Committee, announced that he would not call for a vote on either the incentive bill or the porn tax bill until sometime next week.
