Magazine Publishers of America v. Commonwealth

FLAHERTY, Justice,

dissenting.

I dissent. The proposed magazine tax would violate Article 1, Section 7, of the Pennsylvania Constitution which provides broader protection for freedom of press and speech than the First Amendment. In pertinent part it provides that:

[T]he printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Pennsylvania’s guarantees of free speech and a free press were pre-existent to, and parts of, the Declaration of Rights found in Pennsylvania’s post-revolutionary Constitution, adopted on September 28,1776. Commonwealth v. Edmunds, 526 Pa. 374, 392 , 586 A.2d 887, 896 (1991). This Court, in Insurance Adjustment Bureau v. Insurance Comm’r, 518 Pa. 210, 224-25 , 542 A.2d 1317, 1324 (1988), recognized that Article 1, § 7 of the Pennsylvania Constitution provides protection for freedom of speech broader than the federal constitutional guarantee.

We must always be wary of the government’s control of the expression of ideas and the power to tax is one such control. A tax on magazines that discourages one form of expression, magazines, in favor of another, newspapers, clearly operates to restrain the use of the printing press to examine the proceedings of government. This is in direct violation of the first sentence of Article 1, § 7 of the Pennsylvania Constitution, which states that “no law shall ever be made to restrain the *579 right thereof.” The magazine tax similarly encroaches upon the “free communication of thoughts and opinions” guaranteed to “every citizen” by the second sentence of Article 1, § 7. The Pennsylvania Constitution therefore provides a strong ground for invalidating the magazine tax. The tax restrains the crucial function of the press as government watchdog and limits the free communication of thoughts and opinions in print.

The Commonwealth Court’s decision that the distinction between newspapers and magazines is based on the format and frequency of the publication, not the content, is unsatisfactory. These concepts can easily become blurred. Many magazines meet all of the content-neutral criteria found in the definition of newspaper set forth in 45 Pa.C.S. § 101(a). In addition, the language of the newspaper exemption provides that a “newspaper” is a “ ‘legal newspaper’ or a publication containing matters of general interest and reports of current events ...” 72 P.S. § 7204(30). One can not determine whether a particular publication “contains matters of general interest and reports of current events” merely by examining its form as opposed to reading and analyzing its contents.

For the above reasons, I dissent and believe that the order of the Commonwealth Court, which denied appellants’ request for declaratory and injunctive relief, should be reversed.

PAPADAKOS, J., joins this dissenting opinion.