The Great Recession made sin taxes popular and controversial.  State and municipalities like the regulatory tool that offers some relief for budget deficits and help to cope with sins lead to obesity, excessive drinking, smoking, and pollution.  Sin industry and some "sinners," however, do not welcome sin taxes. In New York, the battle over soda tax ended with a victory for supporters of sins (see RegState.net's summary). Overall, however, the anti-sin movement records many victories.

In Washington State, in February 2010, Governor Christine Gregoire proposed "a Balanced Approach for Hard Times " that included a list of sin taxes, such as tax on carbonated beverages, bottled water, candy, and gum, and increased tax on cigarettes.  In April 2010, the state legislature endorsed its proposal (SB6143).  The beverage industry quickly responded and mobilized local sinners and anti-tax forces to collect 395,000 signatures to place Initiative 1107 on the November 2010 ballot to repeal the local sin taxes.

July 21, 2010: President Obama signed into law the most sweeping overhaul of U.S. financial-market regulations since the Great Depression, marking the conclusion of an effort to craft a legislative response to the 2008 financial crisis, aka the Great Recession: The Dodd-Frank Wall Street Reform and Consumer Protection Act.

Should broadcasters enforce morality or at least the morality of certain parents?  To enforce particular morality norms, the FCC employed third-party liability:  it sanctioned broadcasters for the conduct of others.  The efficiency of the method, the underlying morality, and the process of application were challenged.

January 19, 2003: At the Golden Globe Awards, U2 won the award for the Best Original Song in Motion Picture ("The Hands That Built America" from The Gangs of New York). After receiving the award, on a live broadcast, Bono, blurted out: "This is really, really fucking brilliant!" Concerned about the souls of American children, the Parents Television Council mobilized its members to send numerous complaints to the Federal Communications Commission (FCC).

October 3, 2003: The Chief of the FCC Enforcement Bureau issues a Memorandum Opinion and Order responding to the complaints, concluding that the various broadcasters that aired the Golden Globe Awards did not violate any law.

The Parents Television Council sought to reverse this decision, filed application for review and encouraged its members to send more complaints.

March 18, 2004:  The FCC issues a Memorandum Opinion and Order addressing the 2003 Golden Globe Awards, concluding that "the live broadcast of the “Golden Globe Awards” included material in violation of the applicable indecency and profanity prohibitions." Specifically, the FCC held that "given the core meaning of the “F-Word,” any use of that word or a variation, in any context, inherently has a sexual connotation. . . . The “F-Word” is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse sexual image. The use of the “F-Word” here, on a nationally telecast awards ceremony, was shocking and gratuitous."  Broadcasting of the phrase, therefore, was "patently offensive under contemporary community standard."

June 4, 2007: Broadcasters challenged the FCC's decision. In Fox Television Stations v. FCC, 489 F.3d. 444 (2d Cir. 2007), the Second Circuit held that the FCC's decision was "arbitrary and capricious" under the Administrative Procedure Act, vacating the decision.

April 28, 2009: The FCC appealed.  In a 5-4 decision, the Supreme Court held that the FCC's order was neither "arbitrary" nor "capricious." 

July 13, 2010:  The case returned to the Second Circuit on remand and yet again the Second Circuit held that the FCC's indecency policy violated the First Amendment and was unconstitutionally vague, creating a chilling effect.

In the Wealth of Nations, Adam Smith prescribed sin taxes, writing: "Sugar, rum, and tobacco are commodities which are nowhere necessaries of life, which are become objects of almost universal consumption, and which are therefore extremely proper subjects of taxation.” Free-market ideologists attribute excessive value to Smith's invisible hand metaphor but apparently never turned the pages to his reflections on sin taxes. 

During recessions, states and the federal government reconsider sin taxes as regulatory mechanisms to address deficits and shape costly preferences, such as unhealthy habits. One popular form of sin taxes during the present recession is soda tax.

The New York Governor has been trying to pass soda tax in various forms, but failed each time. In the spring of 2010, Governor David Paterson proposed tax on sugary sodas and exempted diet beverages. Two coalitions of interest groups formed: the Alliance for Healthier New York and New Yorkers Against Unfair Taxes.  The New York Times briefly documents how the New Yorkers Against Unfair Taxes derailed the proposed soda tax.  Several New York politicians, led by State Senator Diane Savino, argue that the soda tax is "regressive."  In a press release, entitled Senator Savino explained:
"The beverage tax is nothing more than a money grab. Instead of revisiting our regressive tax policies and wasteful spending, which have gotten us into the predicament we are in, this proposal is simply another way of increasing revenue on the backs of working families.” ("No to Regressive Beverage Tax," March 12, 2010).
At least one study shows that more than one in four adult New York City residents consumes one or more cans of sugar-sweetened soda per day. Consumption varies widely among demographic groups, with socially disadvantaged populations, who are most impacted by obesity, having the highest prevalence of frequent consumption. In other words, soda tax would be regressive because poor people drink more soda. See: Colin Rehm et al., Demographic and Behavioral Factors Associated with Daily Sugar-sweetened Soda Consumption in New York City Adults, Journal of Urban Health 85: 375-385 (2008).


The campaign materials of the Alliance for Healthier New York and New Yorkers Against Unfair Taxesspeak for themselves.

The Alliance for Healthier New York


Download Ad of the Alliance








New Yorkers Against Unfair Taxes


Download Ad of the Coalition

June 10, 2010: Finding the "government agencies and scientific bodies in the European Union (EU) and Israel have recognized the potential harm of long-term exposure to radiation emitted from cell phones and, as a result, have issued warnings about their use, especially their use by children," San Francisco's Board of Supervisors adopted an ordinance that requires retailers to disclose the Specific Absorption Rate ("SAR") of cell phone devices.

The ordinance's logic is that "[t]he SAR values for different makes and models of cell phones differ widely, but consumers are not able to make informed purchasing decisions because there is no requirement that the retailer provide the applicable SAR values to the consumer at the point when the consumer is deciding between various makes and models."

Accordingly, the ordinance providces that "[n]o retailer within the City may sell or lease. or offer to sell or lease. any cell phone to the public without disclosing the SAR value for that phone."

Several food historians have been debating whether the Brunswick Stew was invented in Georgia or in Virginia, but they all agree that it is a traditional roadkill dish.  The debate exists because some developed the roadkill cuisine.  In the United States, every year, millions of animals are hit on the road by vehicles.  The carcasses could offer value but their collection may impose some cost to the state that may not be in the position to utilize them. 

June 3, 2010: Georgia Governor Sonny Perdue signed into law the Roadkill Bill that provides:

27-3-28. (a) Except as otherwise provided in this Code section, any person may lawfully possess native wildlife which has been accidentally killed by a motor vehicle. The following exceptions and conditions to this general rule shall apply: (1) Any person taking possession of a bear accidentally killed by a motor vehicle shall notify the department or a law enforcement officer of the fact and location of the taking of possession and his or her name and address within 48 hours after taking possession of the bear; and (2) This Code section shall not authorize any person to take possession of any animal of a species designated as a protected species under Article 5 of this chapter or under federal law. (b) A law enforcement officer receiving a report of a person taking possession of a bear under paragraph (1) of subsection (a) of this Code section shall in turn transmit the reported information to the department within 48 hours after receipt of such information.

Put simply, Georgia grants drivers an option to collect carcasses of accidentally killed wildlife and, in return, is asking drivers to report about certain animals, assuming that collectors identify protected animals.

Many societies have negative views toward the habit of spitting in public. Spitting on one's face is an act of insult and potentially assault.  In 1872, the Illinois Supreme Court upheld a jury judgment of punitive damages for a person who was spat upon in his face in a crowded courtroom. Alcorn v. Mitchell, 63 Ill. 553 (1872).  The court held that "[i]t is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, willfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity."  Thus, courts regulated spitting as an assault and battery.

In the 1890s, scientists found out that spitting was not only offensive but was also related to tuberculosis rates.  This disturbing discovery led to the first anti-spitting law, a New York City ordinance from 1896:

Spitting upon the floors of public buildings and of railroad-cars and of ferry-boats is hereby forbidden, and officers in charge, or control of all such buildings, cars and boats shall keep posted permanently in each public building and in each railroad-car and in each ferry-boat a sufficient number of notices forbidding spitting upon the floors, and janitors of buildings, conductors of cars and employees upon ferry-boats shall call the attention of all violators of this ordinance to such notices.

 
Legislatures identified spitting in public as a costly externality that should be regulated and New York City was only the first jurisdiction to act. Other states and cities followed.  Over time, tuberculosis almost vanished in the United States and anti-spitting laws generally disappeared.  States that still have them, do not enforce their anti-spitting laws. 

Spitting, however, has remained a socially symbolic act of offense. In 2010, New York City faces a new problem: spitting upon  workers of the City's transportation system is classified as an assault under the drivers' contract.  The New York Times reports  that Passsngers' habits to spit on drivers result in significant paid leaves.  Thus, although less costly than tuberculosis, spitting has remained socially costly although perhaps for different reasons.

Another way to look at the social cost of spitting in New York City is of course to focus on the drivers as an interest group that inflates the social costs of spitting in modern times.

See:
Michael M. Grynbaum, When Passengers Spit, Bus Drivers Take Months Off, New York Times, May 25, 2010, Page A1.

May 12, 2010, Hawaii: Governor Linda Lingle singed into law the so-called "Birther Bill" that is intended to limit the number of requests for President Obama’s Hawaii birth certificate.

The new law, Act 100, allows state agencies a limited exemption from Freedom of Information requirements when duplicative requests for information are made by the same person.  It provides:

[E]ach agency upon request by any person shall make government records available for inspection and copying during regular business hours; provided that an agency shall not be required to make government records available or respond to a person's subsequent duplicative request, if: (1)  After conducting a good faith review and comparison of the earlier request and the pending request, the agency finds that the pending request is duplicative or substantially similar in nature. (2)  The pending request has already been responded to within the past year; and (3)  The agency's response to the pending request would remain unchanged.

  
In hearings on the Birther Bill, Hawaii's Director of health, testified  that:
For more than a year, the Department of Health has continued to receive approximately 50 e-mail inquiries a month seeking access to President Barack Obama's birth certificate in spite of the fact that President Obama has posted a copy of the certificate on his former campaign website. . . . We have been able to identify about four to six individuals who engage in a pattern of repeated requests. The time and state resources it takes to respond to these often convoluted inquiries are considerable. The responses ultimately have required the time and involvement of the Attorney General's office and the Office of Information Practices. We believe having to respond repeatedly to essentially the same request or a variation of the request all centering on whether or not President Obama was born in Hawaii is a frivolous use of department time and resources, particularly since the outcome will not change no matter how many times we respond to these requests.

The Hawaii's Birther Bill allegedly suppresses information in order to gag "public polluters:" individuals and entities that burden the administration with frivolous requests for information.

April 15, 2010: President Barack Obama signs a Presidential Memorandum that instructs his administration to initiate appropriate rulemaking to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors, equal to those of immediate family members.

Specifically, Obama's Presidential Memorandum clarifies that participating hospitals could no longer "deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability."  The Presidential Memorandum clarifies that it intends to address the rights of gays and lesbians, who have been "uniquely affected [and were] barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated."

Since Rhode Island amended its law and closed its indoor prostitution loophole in November 2009 (See RegState.net discussion), Nevada is the only state that legally accommodates prostitution.  Nevada's legalized prostitution regime relies on licensing and regulation, including health screenings for sex workers and restrictions on advertising by legal brothels.

In Coyote Publishing v. Miller (2010), newspaper publishers challenged the restrictions on advertising arguing that they violated the First Amendment.

The sale of sexual services in Nevada is prohibited unless conducted in designated brothels licensed by a county.  State law prohibits counties of more than 400,000 residents from issuing such licenses, and counties with fewer than 400,000 residents are free to prohibit the sale of sexual services by local ordinance. The upshot is that licensed brothels do not operate in Clark County, which includes the city of Las Vegas.

Eleven counties in Nevada chose to license brothels.  State law establishes a strict regulatory regime governing these brothels.  Sex workers are subject to mandatory health screening for sexually transmitted diseases, including HIV, and brothel owners are liable for damages resulting from exposure to HIV, Condom use is mandatory, and all brothels must so notify customers.  This is the law of the State of Nevada.

The state’s regulatory regime also restricts advertising by legal brothels. The principal restrictions are two: First, brothels are banned from advertising at all in counties where the sale of sexual services is prohibited by local ordinance or state statute.  Second, in counties where the sale of sexual services is permitted, brothels cannot advertise “[i]n any public theater, on the public streets of any city or town, or on any public highway.” Nev. Rev. Stat. § 201.430(1).

In Coyote Publishing v. Miller (2010), the Ninth Circuit examined the restrictions on advertising prostitution in Nevada.  Specifically, the Court addressed the question of whether the state should limit the commodification of sex and "to treat sex as something, like babies and organs, that is 'market-inalienable,' or instead should treat it as equivalent to the sale of physical labor."

The Court, therefore, concluded that:
"In every state but Nevada, that boundary has been drawn so as to forbid [sex for money] transactions entirely, including the proposing of such transactions through advertising. Nevada has, uniquely for this country, delineated a more nuanced boundary, but still seeks to closely confine the sale of sex acts, geographically, through restrictive licensing where legal, and through the advertising restrictions. We conclude that the interest in preventing the  commodification of sex is substantial."

The Court further emphasized two characteristics of prostitution:

• Prohibitions on prostitution do no reflect a desire to discourage the underlying sexual activity itself but its sale. Prostitution without the exchange of money is simply sex, which in most manifestations is not a target of state regulators.
• Public disapproval of prostitution’s commodifying tendencies has an impressive historical pedigree.

The Ninth Circuit, therefore, concluded that the Nevada restrictions on brothel advertising are consistent with the First Amendment.


— I thank my friend and colleague Dave Marcus for bringing this case to my attention.