In Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987), the Supreme Court declared unconstitutional an Arkansas law exempting newspapers as well as “religious, professional, trade and sports journals and/or publications printed and published within this State,” but not general interest magazines, from the state’s 4 percent sales tax. The Arkansas Writers’ Project, Inc., publisher of the magazine Arkansas Times, filed suit against the state law. The Court’s decision built on a number of other cases that restricted state taxing policies that discriminated among different types of publications.

A question of content discrimination in state tax decisions

In the Court’s opinion, Justice Thurgood Marshall relied heavily on the Court’s earlier decision in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983), in which the Court invalidated a state tax that exempted paper and ink costs of only newspapers that spent less than $100,000 on these supplies. Agreeing that no evidence existed that Arkansas had “an improper censorial motive,” Marshall nonetheless noted that “a power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected.” Arkansas chose to distinguish exempt from nonexempt publications on the basis of content. Such content discrimination in turn led to “official scrutiny of the content of publications” that was inconsistent with First Amendment protection of freedom of the press. Such discrimination could only be justified if the state showed that it served “a compelling state interest” and was “narrowly drawn to achieve that end.”

The state unsuccessfully advanced three interests in this case: Its interest in raising revenue could not be used to “explain selective imposition of the sales tax on some magazines and not others.” It had not narrowly tailored its laws to meet a second goal of encouraging “fledgling” publishers. Its concern about fostering communication within the state was limited to communication within certain specified content areas.Arkansas thus could not meet its burden.

Justice John Paul Stevens wrote a short concurring opinion, agreeing that the state had not justified its content discrimination in this case but separating himself from the view that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Justice Antonin Scalia dissented, joined by Chief Justice William H. Rehnquist. Scalia found there was little difference between the tax exemption at issue and other state subsidy schemes that the Court had upheld; he contended that the decision “introduces into First Amendment law an element of arbitrariness that ultimately erodes rather than fosters the important freedoms at issue.” He argued that tax exemptions and similar subsidy schemes could be distinguished from those that infringe fundamental rights on the basis that they did not “as a general rule, have any significant coercive effect.” Scalia cited regulations the post office used for bulk mail and subsidies for the Kennedy Center and public broadcasting. He concluded that “[b]ecause there is no principled basis to distinguish the subsidization of speech in these areas—which we would surely uphold—from the subsidization that we strike down here, our decision today places the granting or denial of protection within our own idiosyncratic discretion.”

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