COLUMBIA, S.C. - It's amazing how prescient the U.S. Supreme Court could be.
Back in 1803, Chief Justice John Marshall wrote, in his opinion in McCulloch v. Maryland, that "An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation... that it is impossible to draw the line of discrimination between a tax fairly laid for the purposes of revenue, and one imposed for the purpose of prohibition... that the power to destroy may defeat and render useless the power to create..."
Enter state Sen. Mike Fair (R-Greenville), who on Tuesday proposed that South Carolina's budget include a 20% "surcharge - that means "tax" - on magazines that show frontal nudity, like Playboy, Hustler - and possibly even Sports Illustrated's annual Swimsuit Issue - with an eye toward generating $385,000 to fund the state's Department of Probation, Pardon and Parole electronic monitoring of sex offenders.
The reason for the tax, according to Charlotte.com , was that "Senate Finance Committee Chairman Hugh Leatherman was hunting for cash to wrap up the budget" - and of course, the tax has nothing to with targeting sexual content; everyone can have confidence in that.
"But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not." - Chief Justice John Marshall, McCulloch v. Maryland
On the other hand, maybe it does have something to do with content.
"As we think about Ted Bundy and others, quoting them, they talked about how pornography led to some of the horrible, horrible things they did," claimed Fair. "Just as we're trying to do with cigarettes, we have tried to do and continue to try to do with alcohol, is let the users of those products pay for some of the consequences that come from that... It'll raise a little bit of money, and as important, and perhaps more important, it draws attention to the dangers of pornography for any family. It's a very dangerous product."
Fair is apparently unaware of how many different "reasons" Bundy gave for his killing spree, "pornography" being simply the last of them - drinking alcohol and stimulation from watching high school cheerleaders practice were the others - or that a different standard applies for taxing First Amendment-protected expression versus cigarettes and alcohol, namely that taxing one form of speech and not others is a form of viewpoint discrimination and is unconstitutional.
And as for porn being "a very dangerous product," Chris Haire, managing editor of the Charleston City Paper, asks Fair "if he has any peer-reviewed proof that looking at nudie mags transforms otherwise upstanding citizens into sex crazed maniacs?"
The adult industry has long known the answer to that one: Such studies don't exist.
