REQUESTED BY: Senator Vard R. Johnson Nebraska State Legislature State Capitol Lincoln, Nebraska 68509
Dear Senator:
This is in response to your letter of March 12, 1985, requesting an opinion on the constitutionality of imposing the Nebraska Sales and Use Tax on the purchase of magazines and journals and the purchase of subscriptions to such materials. Your specific question is whether such taxation infringes upon the constitutional right of freedom of the press.
The courts have routinely held that such taxes do not constitute a restraint upon the freedom of the press and hence a deprivation of due process where the legitimate purpose of the tax is to raise revenue and such sales are not singled out for taxation. Giragi v. Moore, 49 Ariz. 74,64 P.2d 819, 110 A.L.R. 320, appeal dismissed, 301 U.S. 670,81 L. Ed. 1334, 57 S. Ct. 946 (1937); Shoppers GuidePub. Co., Inc. v. Woods, 547 S.W.2d 561 (Tenn. 1977); andArizona Pub. Co. v. O'neil, 22 F. Supp. 117, aff'd,58 S. Ct. 950, 304 U.S. 543, 82 L. Ed. 1518 (1937). The Nebraska Sales and Use Tax would appear to fall within the guidelines set forth in these cases, since the sole purpose of the tax is for the general raising of revenues for the operation of state government and neither its intent nor its effect is to act as a prior restraint upon publication. Therefore, such legislation would not constitute an impermissible infringement upon the right of freedom of the press.
Sincerely,
ROBERT M. SPIRE Attorney General
John Boehm Assistant Attorney General