Stang
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ACLU
Foundation of Northern California
1663 Mission Street
Suite 460
San Francisco, CA 94103
[415] 621-2493
ACLU
Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA 90026
[213] 977-9300
By Fax and Express Mail
Brad Sherman, Chairman
State Board of Equalization
901 Wilshire Boulevard, Suite 210
Santa Monica, CA 90401
Re: Paul Mavrides
To The Members Of The State Board Of Equalization:
This letter is written in support of the above referenced claim for a refund of 1990 sales taxes submitted by Paul Mavrides. The ACLU of Southern California and the ACLU of Northern California ("ACLU") do not ordinarily become involved in state tax issues pending before the State Board Of Equalization. However, this case presents First Amendment issues of fundamental importance that have a significance beyond the particular facts of Mr. Mavrides' case. For this reason, the ACLU has taken the unusual step of submitting our views on these important First Amendment issues for your consideration at this stage of the administrative proceedings. We Believe that the Board should take this opportunity to interpret state tax law and regulations in a manner consistent with fundamental First Amendment rights by granting Mavrides' claim for a refund and abandoning the position that comic book and comic strip authors should be taxed differently from other authors.
FACTUAL BACKGROUND
This case arose out of the Board's 1990 sales tax assessment against comic book and comic strip author Paul Mavrides. Mr. Mavrides sells the rights to his work to publishers, who then pay him royalties based on the sales of the finished comic books containing his work.
Mr. Mavrides was assessed a sales tax of $1,036.00 for the year of 1990. He appealed the assessment using the Board Of Equalization's informal grievance procedures, and eventually paid the bill under protest on July 19, 1993. (At that time, with interest and penalties, the bill had come to $1,467.00). His administrative appeal from this payment is now pending before the Board's Appeals Review Section, with his appeals conference to be scheduled for this Fall. The ACLU understands that the same issues have since arisen with respect to Mr. Mavrides' tax returns in years after 1990 making this a continuing controversy in every sense. The ACLU also believes that there are many other comic book, comic strip and childrens book authors in California who may be subject to the same taxes; thus this issue has broad potential impact in the state and perhaps beyond.
On July 29, 1993, Sanford C. Presant, of Kaye, Scholer, Fierman, Hays & Handler, retained by Mr. Mavrides to represent him in this matter, sent a memorandum making a claim for a tax refund and detailing the various issues that Mr. Mavrides was raising with the Board. Mr. Presant's memorandum included a brief section on the First Amendment implications of the Board's policy. Presant Memorandum, at 3- 4. The ACLU concurs that the First Amendment bars the taxation scheme at issue in this case, for the reasons detailed below.
THE REGULATIONS AT ISSUE VIOLATE THE FIRST AMENDMENT
The issue as to whether the sales tax applies to Mr. Mavrides' delivery of comic book and comic strip manuscripts to publishers in California Is Board of Equalization Sales and Use Tax Regulations 1543 (b) (1) (A) and 1543 (b) (1) (B) [hereinafter "Regulations"]. Regulations 1543 (b) (1) (A) provides that certain forms of expression are not subject to California sales and use taxes. Specifically, the delivery of an "original author's manuscript... for the purpose of publication" or the "transfer of any paper, tape, diskette, or tangible personal property transferred as a means of expressing an idea is not taxable." Regulation 1543 (b) (1) (B) states that the delivery of "illustrations" is taxable. It is this distinction that is impermissible.
A. Differential Taxation of Comic Book Authors is Unconstitutional
The First Amendment protects a wide variety of expression. It has been said that under its requirements, there is "no such thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). Specifically, illustrations as well as text receive First Amendment protection. As Chief Justice Rehnquist has noted, the cartoon Is an American institution which has traditionally received the same robust First Amendment protection that text does. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53-55 (1988). Judge Kaufman many years ago noted in a comic book parody case that "many a true word is indeed spoken in jest.." Irving Berlin v. E.C. Publications, Inc. (Mad Magazine), 329 F.2d 541, 545 (2d Clr. 1964), cert. denied 379 U.S. 822 (1964). In the First Amendment context, as in all of life, a picture may be worth a thousand words.
Since there is no doubt that illustrations are entitled to the same First Amendment protection as text, the question is whether a taxation scheme that exempts text but not comic books or comic strips because they contain illustrations is constitutionally permissible. Differential taxation schemes are examined under a two part test.
First, the scheme is presumptively inconsistent with the First Amendment if it burdens speech because of its content. Simon & Schuster, Inc. v. Crime Victims Bd., 116 L.Ed.2d 476, 486-87 (1991); Leathers v. Medlock, 499 U.S. 439, 446 (1991). Second, content based restrictions must be necessary to serve a compelling state interest. Simon & Schuster, 116 L.Ed.2d at 488; Arkansas Writers Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987). The fact that the intent of the taxing scheme was not to suppress speech does not save the statute or regulation. Simon & Schuster, 116 L.Ed.2d at 488; Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 592 (1983).
It is apparent that the Regulations in this case differentiate on the basis of content. The Board's interpretation of the Regulations is that text with incidental illustrations is not taxable, while work that is primarily illustrations is subject to tax. See March 22, 1993 Letter from William Hitchcock to Paul Mavrides, at 1 (tab 21 of the Presant Memorandum). This means that the content of the expression, i.e., whether it is contains primarily illustrations, determines whether it is taxed or not.
Numerous cases have held that distinctions such as the one at issue here are indeed content-based. In Arkansas Writers' Project, the Court held that a tax scheme that exempted daily newspapers, religious, professional, trade, and sports magazines but applied the sales tax to other forms of expression was an impermissible content-based restriction. Arkansas Writers' Project, 481 U.S. at 229. In Simon & Schuster, the Court found that a "Son of Sam" law that confiscated the proceeds of books that discussed the previous crimes of the author or his or her mental state towards them was a content-based restriction. Simon & Schuster, 116 L.Ed.2d at 487. In Forsyth County v. Nationalist Movement, 120 L.Ed. 2d 101 (1992), a scheme where license fees for political demonstrations were set based on the expected costs of security at the demonstration was found to be a content-based restriction, because in order to assess the security risk, the county would have to look at the content of the speech. Id. at 113; see also J-R Distrib., Inc. v. Eikenbery, 725 F.2d 482, 495 (9th Clr. 1984) (holding fine structure that bases fines on profits from adult book sales violates the First Amendment); Festival Enterprises, Inc. v. City of Pleasant Hill, 182 Cal.App. 3d 960, 964, 227 Cal.Rptr. 601, 602 (1st Dist. App. 1986) (holding Admissions tax on movie theaters to violate First Amendment).
Regulation 1543 (b) (1) (B) is similarly m content-based restriction and is invalid as applied to comic book and comic strip authors. Books that contain primarily illustrations include both comic books and children's books. Both means of expression are unique forums for the expression of certain viewpoints; differential taxation of their creators from authors of other materials would substantially interfere with the message they seek to convey. For instance, Dr. Seuss' classic "The Lorax" is a pro-environment parable directed at children. No other means of expression is available for that particular idea. The existence of "zines", underground comic books that express political viewpoints in an entertaining way, in major cities in California might also be chilled by a tax system that singles out the illustration as a means of expression. See, e.g., Naomi Wolf, Fire With Fire 222-225 (1993) (discussing the popularity of the "Hothead Paisan" series of comic books in San Francisco and elsewhere). Thus, these Regulations are constitutionally suspect because they threaten "to suppress the expression of particular ideas or viewpoints." Leathers, 499 U.S. at 447. This is true whether or not it was the intent of these Regulations to suppress such ideas or viewpoints. Minneapolis Star, 460 U.S. at 592.
This case is therefore distinguishable from two California appellate cases that sustained differential taxation schemes. In Times Mirror Co. v. City of Los Angeles, 192 Cal. App. 3d 170, 237 Cal.Rptr. 346 (2d Dist. App. 1987), the court applied rational basis scrutiny to a taxation scheme that taxed wholesale businesses differently from retail businesses because it was not based on the expressive content of the conduct. Further, the court held a city could tax film producers differently than newspapers because the two were dissimilar industries (making a film is different from putting out a newspaper). Id. at 185, 237 Cal.Rptr. at 355. Here, as will be explained, the comic book (or comic strip) author and the text-only author are similar in all relevant respects. See infra $ B.
Another state appellate case, Redwood Empire Publishing Co. v. State Bd. of Equalization, 207 Cal. App. 3d 1334, 255 Cal.Rptr. 514 (1st Dist. App. 1989), held that the state could differentially tax publications with 90 percent or more advertising. This case applied rational basis scrutiny because of the lessened protection of commercial speech. Leaving aside the issue of whether the case was correctly decided (for the Supreme Court applies heightened scrutiny in commercial speech cases), its rationale does not apply here, for Mavrides' speech is fully protected.
In order to sustain a content-based differential taxation scheme, the state must demonstrate that it is necessary to serve a compelling state interest. Arkansas Writers' Project, 481 U.S. at 231. The Supreme Court has scrutinized alleged justifications for differential taxation schemes with great care in this sensitive First Amendment area. For example, California's interest in raising revenue will not justify these Regulations. Minneapolis Star & Tribune, 460 U.S. at 586.
The only two interests that could apparently motivate these Regulations are not sufficiently compelling to justify the scheme. One is that the state wants to retain the ability to tax the sale of works of art. However, artistic expression Is part of the core of the First Amendment, just like other forms of speech and the press. Finley v. Nat'l. Endowment fir the Arts, 795 F.Supp. 1457, 1473 (C.D.Cal. 1992). Thus, the state cannot permissibly tax artistic expression differently from textual expression. This is especially so in the context of the comic book and comic strip authors who employ words and illustration to convey their message. There is no meaningful distinction between a comic book and a purely textual work from the standpoint of the First Amendment.
The second possible state interest is that of protecting the press. The exemption, after all, was probably motivated by a desire not to subject the press to the burdens of the sales tax. However, the exemption does not serve this interest; it burdens some speech in the process of protecting other speech. The "press" includes not just mainstream text-oriented newspapers but producers of comic books and comic strips as well. Nobody would claim that Garry Trudeau, the creator of "Doonesburry", was not a member of the press and yet these Regulations would exclude Garry Trudeau as an author.
Moreover, some cartoon works are created not by a single person but by teams of cartoonists and writers working together. The Board's application of the Regulations to cartoon works thus creates the completely unjustifiable situation that the person writing dialogue for a cartoon work escapes sales taxation on a delivered script, while a cartoonist working alone who writes dialogue directly on the cartoon manuscript Is taxed. This grants an unconstitutional preference to authors who writes with words alone over authors who write with words and visualizations for the exact same medium. Such a preference would fail even the rational basis test of Times Mirror. In addition, such a preference would encourage tax avoidance by cartoonists who would simply charge more for their script writing than their visualizations. This would be impossible to police (This problem is akin to large corporations who avoid taxation through internal transfer pricing so that all of their income shows up in the subsidiaries located in the lowest taxed jurisdictions. See Barclays Bank PLC v. Franchise Tax Board, 129 L.Ed.2d 244, 253 (1994).)
Another problem the Regulations fail to address is the editorial cartoonist. History shows us that Thomas Nast was more successful in raising public indignation about Boss Tweed by drawing him as a vulture than the written press was in scores of articles. Tweed reportedly said "Stop the damned pictures! The people who vote for me can't read, but they understand those damned pictures!" This problem cannot be solved by carving an exemption for cartoon works that comment on political or social issues. First, such an exemption would be impossibly vague. See Big Mama Rag v. United States, 631 F.2d 1030 (D.C. Cir. 1980). Second, cartoon works containing political and social commentary are not confined to the editorial pages of newspapers. The obvious example of this is Doonesburry, winner of two Pulitzer Prizes for cartooning. See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (holding satirical advertisement in adult magazine to be a sort of editorial cartoon).
This blurring of entertainment and social commentary is not a new development. Up until the turn of the century, virtually all the cartoons created in America were political cartoons. The very popular Puck made the history books for Its famous condemnation of a US Supreme Court decision-- "I don't know If the Constitution follows the flag, but the Supreme Court follows the election returns." Judge, the first Life, and the New Yorker primarily featured cartoons of political and social commentary. In the I950's and 1960's, the incredible popularity of Mad Magazine's blend of silly humor and social satire made every schoolteacher wince. The tradition continues today. Besides Doonesburry (which recently started drawing President Clinton as a waffle), several other strips have touched political issues. Cathy was pulled by several newspapers for anti-Bush sentiments. Lynn Johnson's For Better or For Worse had a character reveal he was gay. Johnny Hart's B.C. poked fun at the separation of church and state. Even Charles Schultz's Peanuts has been the vehicle for recent sentimental remembrances of D-Day and World War II. So even those cartoons that are primarily read for entertainment purposes cross over into the area of social commentary.
Many comic strips have even more political and social commentary, from the aforementioned Hothead Paisan, to Tales of the Closet, portraying gay teenagers in New York City, to Twisted Sisters, an autobiographical anthology series by women cartoonists, to Palestine, an ongoing series about the troubles in the Middle East told from the vantage point of an ordinary person. The comic book medium has been used to explore almost every social and political issue confronting our society. Because the First Amendment requires the protection of this medium as it does any part of the press, the Board of Equalization must treat cartoonists as authors.
This case is governed by Arkansas Writer's Project. In that case, the tax scheme included exemptions to various publications coverings sports and religion in order to reduce the burdens on smaller entitles within the press, 481 U.S. at 232. While the scheme may have been created with benevolent intentions, it was both overinclusive and underinclusive exempting certain publications from the tax but not others. Id.
Arkansas Writer's Project and the other cases cited in this letter establish clearly that the type of differential taxing scheme in the challenged Regulations cannot be sustained under the First Amendment. There is no compelling state interest that sustains this differential treatment.
B. The Regulations are Void for Vagueness The Regulations at issue are also void for vagueness. A regulation is vague when a reasonable person of ordinary intelligence does not know what is included in its scope. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The void for vagueness rule has been applied in many contexts. E.g., Gentile v. State Bar of Nevada, 115 L.Ed.2d 888 (1991) (applying vagueness doctrine to disciplinary regulation against lawyers); Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) (applying doctrine to provision of international convention on film distribution); Big Mama Rag, Inc. v. United States, 631 F.2d 1030 (D.C. Clr. 1980) (Mikva, J.) (applying doctrine to taxation of First Amendment activities), Rubin v. City of Santa Monica, 823 F.Supp. 709 (C.D. Cal. 1993) (applying doctrine to permit scheme for congregations in a park); Ass'n of Nat'l Advertisers, Inc. v. Lungren, 809 F.Supp. 774 (N.D. Cal. 1992) (applying doctrine to advertising regulations); Cook Family Foods, Ltd. v. Voss, 781 F.Supp. 1458 (C.D. Cal. 1991) (applying doctrine to agriculture regulations); Lewitzky Dance Found v. Frohnmayer, 754 F.Supp. 774 (C.D. Cal. 1991) (applying doctrine to conditions attached to receipt of NEA grants); Zarate v. Younglove, 86 F.R.D. 80 (D.C. Cal. 1980) (applying doctrine to court orders).
In this case it Is impossible to determine what Is primarily illustrative and what Is primarily textural. When a cartoonist draws, whether from his or her own script or synopsis or another's, he or she Is also writing. The cartoonist can decide whether it is day or night, inside or out, whether a scene will be shown in close-ups or long shots, right down to the subtlety of facial expressions, and whether his or her characters' clothes are wrinkled or pressed. In short, a through drawing, the cartoonist visualizes descriptions and scenarios as they might be imagined by a reader of a written work. As such, the visualizations are narrative. However, such visualizations are not merely imaginings from a written text, because in a cartoon work, the manuscript page is where the visualized text has been written for the very first time. To put it another way, in a cartoon work the drawing does not merely illustrate the text the way John Tenneil's work illustrates Lewis Carroll's AIice's Adventures in Wonderland, but rather is part of the text. (Think of the way Dr. Suess uses pictures and words-- the pictures are not merely an illustration; rather, the text and pictures are inseparable.) This is why a cartoon manuscript is an author's manuscript. Any regulation which differentiates between text and illustrations creates a false dichotomy; children's books and comic books both show this.
In many analogous cases, the courts have found statues with such definitional problems to be impermissibly vague. For instance, in Bullfrog Films, the court invalidated a treaty that distinguished between educational films because the line between the two was vague. 847 F.2d at 512-14, Accord Cook Family Foods, 781 F.Supp. at 1468-72 (invalidating moisture regulation that did not specify precise amount of moisture needed to establish violation). In Big Mama Rag, a panel opinion written by Judge Mlkva struck down as vague an IRS regulation that exempted "educational" materials from taxation but taxed "action organization" materials unless they provided a "full and fair exposition of the pertinent facts..." Big Mama Rag, 631 F.2d at 1034. Judge Mikva noted that people engaged in First Amendment activity needed to know whether they would be taxed or not, and that "I know it when I see it" is not an appropriate standard. Id. at 1040. Because the Board of Equalization Regulations at issue in this case are just as subjective, they must fall on vagueness grounds.
In this case there are many problems with interpreting the Regulations at issue. First, it is hard to know whether hybrids of text and illustration fall on one side of the line or the other. This difficulty is compounded by a lack of understanding of the medium in the application of these Regulations. An understanding of the role of drawing in a cartoon work is required.
Additionally, the vagueness inherent in the Regulations affects the speech that is being produced. An author may decide to make his or her product more text-based to avoid the sales tax. See Grayned, 408 U.S. at 109. As that Is done, it comes at the cost of the author's original choice of forum for his of her views, and may cost all of us the unique nature of the comic book or comic strip (or the illustrated children's book) as a means of expression. Many things are best expressed through a picture, or a picture accompanied by a few words. For some ideas, the picture is the only practical means of expression, or the only one capable of reaching a wide audience. The economic damage to Mr. Mavrides from having to pay this tax is significant; the damage to our system of free expression is incalculable. The power to tax Is literally the power to destroy, McCuIIoch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819). Free expression is too important to be sacrificed at the alter of vague regulations that selectively tax illustrations.
CONCLUSION
The ACLU believes that Mr. Mavrides should receive a refund on his 1990 sales taxes and no further efforts should be made to collect similar taxes in the future. Moreover, the Board of Equalization should issue new Regulations consistent with the First Amendment guarantees to avoid violating these principles. We hope that this letter can be of assistance to you in making your decision in this matter.
Dated: September 7, 1994
Respectfully submitted,
Paul L. Hoffman Ann Brick For amici ACLU Foundation of Southern California and ACLU Foundation Northern California *
* The Authors would like to express their appreciation to Mitchell Berger of the Comic Book Legal Defense Fund and Dilan Esper, a third year student at USC Law School, for their Important contributions to this amicus submission.
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