sweet science

The Sweet Science?

The Journal of Law and Policy at Brooklyn Law School has an

interesting student note by Joshua A. Stein, Hitting Below the Belt:

Florida's Taxation of Pay-Per-Pay Boxing Programming is a

Content-Based Violation of the First Amendment. Stein concludes that:

Florida is one of numerous states to authorize a tax specific to

telecasts of boxing. As these taxes are specific to a type of

television programming, they should be held by courts to be

content-based restrictions on speech. However, boxing and other

sports have been denied the protections of the First Amendment

because they are deemed to be non-expressive. An historical and

literary analysis of boxing demonstrates that the sport satisfies

the Spence test because boxers intend to express particularized

messages which are understood by their audiences. When strict

scrutiny is applied to taxes on boxing telecasts, the state's

interest in raising revenue is outweighed by boxers'--and their

promoters'--freedom of expression.

Stein quotes Norman Mailer at length in an attempt to show that

"[a]lthough the expression inherent in boxing cannot be neatly

categorized, it is expressive conduct that conveys a specific message

that has a substantial likelihood of being understood nonetheless."

Somehow, I can't buy the argument the two guys beating their brains

out is an exemplar of "expressive conduct." However, I am sensitive to

the argument that (i) there's a potential slipperly slope here and

(ii) the power to tax is the power to destroy. For instance, if the

state can tax boxing while exempting other sorts of content, what's to

stop it from imposing a tax that is so high that it would, in effect,

ban any show with any erotic material (however loosely defined) from

the cable-ways.

Ultimately, of course, the state's efforts in this regard will fail.

As I noted earlier, once the internet pipes get big enough, the

broadcasters of internet content will be beyond the reach of state

sales tax assessors. Anyone who doesn't think that boxing matches

can't be moved offshore simply does not remember "The Thriller In

Manilla"