Another Supreme Court decision has been added to the towering pile of decisions that are full of reverence for the First Amendment but not full of reason. The decision illustrates the suspicion at the core of contemporary First Amendment law, the suspicion that no one can be trusted to be reasonable. The decision also illustrates how some persons seem to enjoy detecting threats to freedom where, manifestly, no threat exists.
In 1967, Minnesota enacted a 4 percent sales tax, but exempted periodic publications. In 1971, Minnesota imposed a use tax on the paper and ink products newspapers use. In 1974, Minnesota exempted the first $100,000 worth. Because of the exemption, only 11 publishers, producing 14 of Minnesota's then 388 newspapers, paid the tax in 1974. The Minneapolis Star and Tribune Co. paid about two-thirds of the total ($608,634 of $893,355) collected. In 1975, 13 publishers of 16 papers paid the tax, and again the Star Tribune paid about two-thirds.
The Star Tribune challenged the use tax as a violation of the First Amendment guarantee of freedom of the press and the 14th Amendment guarantee of equal protection. Minnesota's supreme court upheld the tax. The U.S. Supreme Court has struck it down.
Speaking for the court, Justice Sandra O'Connor acknowledges that there is no indication that Minnesota's legislature had a punitive, censorial or other impermissible intention when enacting the tax. But when the press is singled out for special treatment, even treatment benign in intention and beneficial in effect, the "threat" of a "crippling" tax becomes "acute." O'Connor says:
"A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When a state imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency."
"Crippling"? "Destroy"? Come now. We are talking about Minnesota, not Mozambique.
Justice William Rehnquist, dissenting, calculates that in 1974 the Star Tribune would have paid three times more ($1.8 million) if it had been subject to the sales tax rather than the use tax. Rehnquist wonders how a state that tailors its tax system to the advantage of newspapers can be said to have violated the ban on laws "abridging the freedom . . . of the press." To abridge is to diminish or curtail. Now the court has construed the First Amendment to prohibit an act that manifestly does not diminish or curtail.
The court has struck down Minnesota's law primarily because of "the possibility" that someday, somewhere a tax differential could adversely affect newspapers, or even because a state "might" achieve a censor's effect by the "threat" implicit in the possibility. Granted, there are countries where government subsidies of newsprint and other costs are so substantial that fear of withdrawal of the subsidies has a chilling effect on press criticism. But, again, the court is not constructing the Constitution of a country where such practices are probable.
By the court's reasoning, Minnesota's exemption of newspapers from the sales tax is constitutionally dubious because the state could repeal it in a punitive spirit. The court seems to have taken too much to heart Chief Justice John Marshall's thought that the power to tax is the power to destroy. Rehnquist recalls Oliver Wendell Holmes' statement that "the power to tax is not the power to destroy while this court sits," as demonstrated by the fact that the court often has stopped tax practices that "attempt to discriminate or otherwise go too far."
Recently the court has seemed to doubt the capacity of a state or, for that matter, the court to know what constitutes going too far. But the capacity for conscious moderation is the key to good government.
Those who framed the First Amendment assumed that a society suited to it would be temperate and capable of making reasonable distinctions. Today, many who construe the amendment expansively seem to assume that the society it serves is intemperate, and that the court must assume the society is in perpetual danger of tipping over into unreasonable, even tyrannical, measures. The assumption seems to be that the court must block even reasonable exercises of a power that could be used unreasonably against First Amendment freedoms.
The Star Tribune publishes some Great American Newspapers (a GAN is one that carries the Will column), but it should not have won this case.