# Leathers v. Medlock

Supreme Court of the United States
499 U.S. 439
LEATHERS, COMMISSIONER OF REVENUES OF ARKANSAS v. MEDLOCK ET AL.
Certiorari to the Supreme Court of Arkansas
No. 90-29 Argued: Jan. 9, 1991 --- Decided: Apr. 16, 1991

## Dissenting Opinion

    Marshall

## Linked case(s)

301 Ark. 483
Arkansas' Gross Receipts Act imposes a tax on receipts from the sale of all tangible personal property and specified services, but expressly exempts, inter alia, certain receipts from newspaper and magazine sales. In 1987, Act 188 amended the Gross Receipts Act to impose the tax on cable television. Petitioners in No. 90-38, a cable television subscriber, a cable operator, and a cable trade organization (cable petitioners), brought this class action in the State Chancery Court, contending that their expressive rights under the First Amendment and their rights under the Equal Protection Clause of the Fourteenth Amendment were violated by the extension of the tax to cable services, the exemption from the tax of newspapers and magazines, and the exclusion from the list of services subject to the tax of scrambled satellite broadcast television services to home dish-antennae owners. In 1989, shortly after the Chancery Court upheld the constitutionality of Act 188, Arkansas adopted Act 769, which extended the tax to, among other things, all television services to paying customers. On appeal, the State Supreme Court held that the tax was not invalid after the passage of Act 769 because the Constitution does not prohibit the differential taxation of different media. However, believing that the First Amendment does prohibit discriminatory taxation among members of the same medium, and that cable and scrambled satellite television services were "substantially the same," the Supreme Court held that the tax was unconstitutional for the period during which it applied to cable but not satellite broadcast services.
Held:
1. Arkansas' extension of its generally applicable sales tax to cable television services alone, or to cable and satellite services, while exempting the print media, does not violate the First Amendment. Pp. 444–453.
(a) Although cable television, which provides news, information, and entertainment to its subscribers, is engaged in "speech" and is part of the "press" in much of its operation, the fact that it is taxed differently from other media does not by itself raise First Amendment concerns. [p440] The Arkansas tax presents none of the First Amendment difficulties that have led this Court to strike down differential taxation of speakers. See, e.g., Grosjean v. American Press Co., 297 U.S. 233; Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221. It is a tax of general applicability covering all tangible personal property and a broad range of services and, thus, does not single out the press and thereby threaten to hinder it as a watchdog of government activity. Furthermore, there is no indication that Arkansas has targeted cable television in a purposeful attempt to interfere with its First Amendment activities, nor is the tax structured so as to raise suspicion that it was intended to do so. Arkansas has not selected a small group of speakers to bear fully the burden of the tax, since, even if the State Supreme Court's finding that cable and satellite television are the same medium is accepted, Act 188 extended the tax uniformly to the approximately 100 cable systems then operating in the State. Finally, the tax is not content based, since there is nothing in the statute's language that refers to the content of mass media communications, and since the record contains no evidence that the variety of programming cable television offers subscribers differs systematically in its message from that communicated by satellite broadcast programming, newspapers, or magazines. Pp. 444–449.
(b) Thus, cable petitioners can prevail only if the Arkansas tax scheme presents "an additional basis" for concluding that the State has violated their First Amendment rights. See Arkansas Writers' , supra, at 233. This Court's decisions do not support their argument that such a basis exists here because the tax discriminates among media and discriminated for a time within a medium. Taken together, cases such as Regan v. Taxation with Representation of Wash., 461 U.S. 540, Mabee v. White Plains Publishing Co., 327 U.S. 178, and Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, establish that differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas. Nothing about Arkansas' choice to exclude or exempt certain media from its tax has ever suggested an interest in censoring the expressive activities of cable television. Nor does anything in the record indicate that this broad-based, content-neutral tax is likely to stifle the free exchange of ideas. Pp. 449–453.
2. The question whether Arkansas' temporary tax distinction between cable and satellite services violated the Equal Protection Clause must be addressed by the State Supreme Court on remand. P. 453.
301 Ark. 483, 785 S.W.2d 202, affirmed in part, reversed in part, and remanded.
[p441] O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 454.
William E. Keadle argued the cause for petitioner in No. 90-29 and respondents in No. 90-38. With him on the briefs was Larry D. Vaught.
Eugene G. Sayre argued the cause and filed briefs for petitioners in No. 90-38 and respondents in No. 90-29.
* ↑ Together with No. 90-38, Medlock et al. v. Leathers, Commissioner of Revenues of Arkansas, et al., also on certiorari to the same court.
† ↑ Briefs of amici curiae urging reversal were filed for Dow Jones & Co., Inc., by Richard J. Tofel and Robert D. Sack; for the Indiana Cable Television Association Inc. by D. Craig Martin; and for the National Cable Television Association, Inc., by H. Bartow Farr III, Richard G. Taranto, Brenda L. Fox, and Michael S. Schooler.
Briefs of amici curiae urging affirmance were filed for the City of Los Angeles, California, et al., by Larrine S. Holbrooke, William R. Malone, Edward J. Perez, and Barry A. Lindahl; and for the City of New York et al. by Robert Alan Garrett.
Briefs of amici curiae were filed for Cablevision Industries Corp. et al. by Brent N. Rushforth; for the California Cable Television Association by Frank W. Lloyd III, Diane B. Burstein, and Alan J. Gardner; for Century Communications Corp. et al. by John P. Cole, Jr., and Wesley R. Heppler; for the Competitive Cable Association et al. by Harold R. Farrow, Sol Schildhause, and Robert M. Bramson; for Greater Media Cablevision, Inc., by Robert H. Louis and Salvatore M. DeBunda; and for the National Association of Broadcasters et al. by Jack N. Goodman and James J. Popham.
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