The Volokh Conspiracy

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Free Speech

"A Narrative Summary Describing How the … Taxpayer … Shares California's Values with Regard to Women's Reproductive Rights"

That's what a California bill (passed 76-0 by Assembly and 6-0 and 5-2 by Senate committees) would ask film tax credit seekers to provide in their tax credit application.


Jon Healey, L.A. Times Deputy Editorial Page Editor, flags this today:

The bill … would offer an additional $50 million in tax credits to film and TV producers who locate their productions in California at least in part because of the restrictive abortion laws in other states. Subsidy applicants would have to submit "a narrative summary describing how the qualified taxpayer, and any relevant activities during the production period, shares California's values with regard to women's reproductive rights," which would be a factor in the California Film Commission's decisions about whom to fund.

Not to put too fine a point on it, but the bill's title is the "Share Our Values Tax Credit."

Healey condemns this, and I agree: Denying a grant or other benefit (including a tax credit) to a person or group based on its ideology is a clear First Amendment violation.

The Court reaffirmed that just in 2013, in U.S. Agency for International Development v. Alliance for Open Society International, when it struck down a policy that denied HIV-prevention grants to any organization "that does not have a policy explicitly opposing prostitution and sex trafficking." "[T]he Government," the Court held "may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit."  And this of course applies just as much to tax rules—"a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech" (Speiser v. Randall (1958)).

Now, unlike the law in USAID v. AOSI, this law merely requires people to describe how the applicant "shares California's values with regard to women's reproductive rights." But why would it ask for such a description if it didn't plan on giving an advantage to people and organizations who have certain "values" on this subject, and discriminating against those who have the opposite values? And indeed the very process of asking about this can deter applicants from expressing "values" contrary to the government's.