Subject:  LEATHERS v. MEDLOCK, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



LEATHERS, COMMISSIONER OF REVENUES OF
ARKANSAS v. MEDLOCK et al.


certiorari to the supreme court of arkansas

No. 90-29.  Argued January 9, 1991 -- Decided April 16, 1991 {1}

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. 4-13.


    (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.  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. 4-9.

    (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 Washington, 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, contentneutral tax is likely to stifle the free
exchange of ideas.  Pp. 9-13.

    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. 13.

301 Ark. 483, 785 S. W. 2d 202, affirmed in part, reversed in part, and
remanded.

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.

------------------------------------------------------------------------------
1
    Together with No. 90-38, Medlock et al. v. Leathers, Commissioner of
Revenues of Arkansas, et al., also on certiorari to the same court.





Subject: 90-29 & 90-38 -- OPINION, LEATHERS v. MEDLOCK

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


Nos. 90-29 and 90-38



TIMOTHY J. LEATHERS, COMMISSIONER OF
REVENUES OF ARKANSAS, PETITIONER
v.
90-29
DANIEL L. MEDLOCK et al.



DANIEL L. MEDLOCK, et al., PETITIONERS
v.
90-38
TIMOTHY J. LEATHERS, COMMISSIONER
OF REVENUES, et al.


on writs of certiorari to the supreme court of arkansas

[April 16, 1991]



    Justice O'Connor delivered the opinion of the Court.

    These consolidated cases require us to consider the constitutionality
of a state sales tax that excludes or exempts certain segments of the media
but not others.

I
    Arkansas' Gross Receipts Act imposes a 4% tax on receipts from the sale
of all tangible personal property and specified services.  Ark. Code Ann.
15 26-52-301, 26-52-302 (1987 and Supp. 1989).  The Act exempts from the
tax certain sales of goods and services.  MDRV 26-52-401 (Supp. 1989).
Counties within Arkansas impose a 1% tax on all goods and services subject
to taxation under the Gross Receipts Act, 15 26-74-307, 26-74-222 (1987 and
Supp. 1989), and cities may impose a further 12% or 1% tax on these items,
MDRV 26-75-307 (1987).
    The Gross Receipts Act expressly exempts receipts from subscription and
over-the-counter newspaper sales and subscription magazine sales.  See 15
26-52-401(4), (14) (Supp. 1989); Revenue Policy Statement 1988-1 (Mar. 10,
1988), reprinted in CCH Ark. Tax Rep. MDRV 69-415.  Before 1987, the Act
did not list among those services subject to the sales tax either cable
television  {1} or scrambled satellite broadcast television services to
home dish-antennae owners. {2}  See MDRV 2652-301 (1987).  In 1987,
Arkansas adopted Act 188, which amended the Gross Receipts Act to impose
the sales tax on cable television.  1987 Ark. Gen. Acts, No. 188, MDRV 1.
    Daniel L. Medlock, a cable television subscriber, Community
Communications Co., a cable television operator, and the Arkansas Cable
Television Association, Inc., a trade organization composed of
approximately 80 cable operators with systems throughout the State (cable
petitioners), brought this class action in the Arkansas Chancery Court to
challenge the extension of the sales tax to cable television services.
Cable petitioners contended that their expressive activities are protected
by the First Amendment and are comparable to those of newspapers,
magazines, and scrambled satellite broadcast television.  They argued that
Arkansas' sales taxation of cable services, and exemption or exclusion from
the tax of newspapers, magazines, and satellite broadcast services,
violated their constitutional rights under the First Amendment and under
the Equal Protection Clause of the Fourteenth Amendment.
    The Chancery Court granted cable petitioners' motion for a preliminary
injunction, requiring Arkansas to place in escrow the challenged sales
taxes and to keep records identifying collections of the taxes.  Both sides
introduced extensive testimony and documentary evidence at the hearing on
this motion and at the subsequent trial.  Following the trial, the Chancery
Court concluded that cable television's necessary use of public
rights-of-way distinguishes it for constitutional purposes from other
media.  It therefore upheld the constitutionality of Act 188, dissolved its
preliminary injunction, and ordered all funds collected in escrow
released.
    In 1989, shortly after the Chancery Court issued its decision, Arkansas
adopted Act 769, which extended the sales tax to "all other distribution of
television, video or radio services with or without the use of wires
provided to subscribers or paying customers or users."  1989 Ark. Gen.
Acts, No. 769, MDRV 1.  On appeal to the Arkansas Supreme Court, cable
petitioners again challenged the State's sales tax on the ground that,
notwithstanding Act 769, it continued unconstitutionally to discriminate
against cable television.  The Supreme Court rejected the claim that the
tax was invalid after the passage of Act 769, holding that the Constitution
does not prohibit the differential taxation of different media.  Medlock v.
Pledger, 301 Ark. 483, 487, 785 S. W. 2d 202, 204 (1990).  The Court
believed, however, that the First Amendment prohibits discriminatory
taxation among members of the same medium.  On the record before it, the
court found that cable television services and satellite broadcast services
to home dish-antennae owners were "substantially the same."  Ibid.  The
State Supreme Court rejected the Chancery Court's conclusion that cable
television's use of public rights-of-way justified its differential sales
tax treatment, explaining that cable operators already paid franchise fees
for that right.  Id., at 485, 785 S. W. 2d, at 203.  It therefore held that
Arkansas' sales tax was unconstitutional under the First Amendment for the
period during which cable television but not satellite broadcast services
were subject to the tax.  Id., at 487; 785 S. W. 2d, at 204.
    Both cable petitioners and the Arkansas Commissioner of Revenues
petitioned this Court for certiorari.  We consolidated these petitions and
granted certiorari, 498 U. S. --- (1990), in order to resolve the question,
left open in Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 233
(1987), whether the First Amendment prevents a State from imposing its
sales tax on only selected segments of the media.

II
    Cable television provides to its subscribers news, information, and
entertainment.  It is engaged in "speech" under the First Amendment, and
is, in much of its operation, part of the "press."  See Los Angeles v.
Preferred Communications, Inc., 476 U. S. 488, 494 (1986).  That it is
taxed differently from other media does not by itself, however, raise First
Amendment concerns.  Our cases have held that a tax that discriminates
among speakers is constitutionally suspect only in certain circumstances.
    In Grosjean v. American Press Co., 297 U. S. 233 (1936), the Court
considered a First Amendment challenge to a Louisiana law that singled out
publications with weekly circulations above 20,000 for a 2% tax on gross
receipts from advertising.  The tax fell exclusively on 13 newspapers.
Four other daily newspapers and 120 weekly newspapers with weekly
circulations of less than 20,000 were not taxed.  The Court discussed at
length the pre-First Amendment English and American tradition of taxes
imposed exclusively on the press.  This invidious form of censorship was
intended to curtail the circulation of newspapers and thereby prevent the
people from acquiring knowledge of government activities.  Id., at 246-251.
The Court held that the tax at issue in Grosjean was of this type, and was
therefore unconstitutional.  Id., at 250.
    In Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460
U. S. 575 (1983), we noted that it was unclear whether the result in
Grosjean depended on our perception in that case that the State had imposed
the tax with the intent to penalize a selected group of newspapers or
whether the structure of the tax was sufficient to invalidate it.  See 460
U. S., at 580 (citing cases and commentary).  Minneapolis Star resolved any
doubts about whether direct evidence of improper censorial motive is
required in order to invalidate a differential tax on First Amendment
grounds: "Illicit legislative intent is not the sine qua non of a violation
of the First Amendment."  Id., at 592.
    At issue in Minneapolis Star was a Minnesota special use tax on the
cost of paper and ink consumed in the production of publications.  The tax
exempted the first $100,000 worth of paper and ink consumed annually.
Eleven publishers, producing only 14 of the State's 388 paid circulation
newspapers, incurred liability under the tax in its first year of
operation.  The Minneapolis Star and Tribune Company (Star Tribune) was
responsible for roughly two-thirds of the total revenue raised by the tax.
The following year, 13 publishers, producing only 16 of the State's 374
paid circulation papers, paid the tax.  Again, the Star Tribune bore
roughly two-thirds of the tax's burden.  We found no evidence of
impermissible legislative motive in the case apart from the structure of
the tax itself.
    We nevertheless held the Minnesota tax unconstitutional for two
reasons.  First, the tax singled out the press for special treatment.  We
noted that the general applicability of any burdensome tax law helps to
ensure that it will be met with widespread opposition.  When such a law
applies only to a single constituency, however, it is insulated from this
political constraint.  See id., at 585.  Given "the basic assumption of our
political system that the press will often serve as an important restraint
on government," we feared that the threat of exclusive taxation of the
press could operate "as effectively as a censor to check critical comment."
Id., at 585.  "Differential taxation of the press, then, places such a
burden on the interests protected by the First Amendment," that it is
presumptively unconstitutional.  Ibid.
    Beyond singling out the press, the Minnesota tax targeted a small group
of newspapers -- those so large that they remained subject to the tax
despite its exemption for the first $100,000 of ink and paper consumed
annually.  The tax thus resembled a penalty for certain newspapers.  Once
again, the scheme appeared to have such potential for abuse that we
concluded that it violated the First Amendment: "[W]hen the exemption
selects such a narrowly defined group to bear the full burden of the tax,
the tax begins to resemble more a penalty for a few of the largest
newspapers than an attempt to favor struggling smaller enterprises."  Id.,
at 592.
    Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 (1987),
reaffirmed the rule that selective taxation of the press through the narrow
targeting of individual members offends the First Amendment.  In that case,
Arkansas Writers' Project sought a refund of state taxes it had paid on
sales of the Arkansas Times, a general interest magazine, under Arkansas'
Gross Receipts Act of 1941.  Exempt from the sales tax were receipts from
sales of religious, professional, trade and sports magazines.  See id., at
224-226.  We held that Arkansas' magazine exemption, which meant that only
"a few Arkansas magazines pay any sales tax," operated in much the same way
as did the $100,000 exemption in Minneapolis Star and therefore suffered
from the same type of discrimination identified in that case.  Id., at 229.
Moreover, the basis on which the tax differentiated among magazines
depended entirely on their content.  Ibid.
    These cases demonstrate that differential taxation of First Amendment
speakers is constitutionally suspect when it threatens to suppress the
expression of particular ideas or viewpoints.  Absent a compelling
justification, the government may not exercise its taxing power to single
out the press.  See Grosjean, 297 U. S., at 244-249; Minneapolis Star, 460
U. S., at 585.  The press plays a unique role as a check on government
abuse, and a tax limited to the press raises concerns about censorship of
critical information and opinion.  A tax is also suspect if it targets a
small group of speakers.  See Minneapolis Star, supra, at 575; Arkansas
Writers', 481 U. S., at 229.  Again, the fear is censorship of particular
ideas or viewpoints.  Finally, for reasons that are obvious, a tax will
trigger heightened scrutiny under the First Amendment if it discriminates
on the basis of the content of taxpayer speech.  See id., at 229-231.
    The Arkansas tax at issue here presents none of these types of
discrimination.  The Arkansas sales tax is a tax of general applicability.
It applies to receipts from the sale of all tangible personal property and
a broad range of services, unless within a group of specific exemptions.
Among the services on which the tax is imposed are natural gas,
electricity, water, ice, and steam utility services; telephone,
telecommunications, and telegraph service; the furnishing of rooms by
hotels, apartment hotels, lodging houses, and tourist camps; alteration,
addition, cleaning, refinishing, replacement, and repair services; printing
of all kinds; tickets for admission to places of amusement or athletic,
entertainment, or recreational events; and fees for the privilege of having
access to or use of amusement, entertainment, athletic, or recreational
facilities.  See Ark. Code Ann. MDRV 26-52-301 (Supp. 1989).  The tax does
not single out the press and does not therefore threaten to hinder the
press as a watchdog of government activity.  Cf. Minneapolis Star, supra,
at 585.  We have said repeatedly that a State may impose on the press a
generally applicable tax.  See Swaggart Ministries v. Board of Equalization
of California, 493 U. S. ---, --- (1990); Arkansas Writers', supra, at 229;
Minneapolis Star, supra, at 586, and n. 9.
    Furthermore, there is no indication in this case that Arkansas has
targeted cable television in a purposeful attempt to interfere with its
First Amendment activities.  Nor is the tax one that is structured so as to
raise suspicion that it was intended to do so.  Unlike the taxes involved
in Grosjean and Minneapolis Star, the Arkansas tax has not selected a
narrow group to bear fully the burden of the tax.
    The tax is also structurally dissimilar to the tax involved in Arkansas
Writers'.  In that case, only "a few" Arkansas magazines paid the State's
sales tax.  See Arkansas Writers', 481 U. S., at 229, and n. 4.  Arkansas
Writers' Project maintained before the Court that the Arkansas Times was
the only Arkansas publication that paid sales tax.  The Commissioner
contended that two additional periodicals also paid the tax.  We responded
that, "[w]hether there are three Arkansas magazines paying tax or only one,
the burden of the tax clearly falls on a limited group of publishers."
Id., at 229, n. 4.  In contrast, Act 188 extended Arkansas' sales tax
uniformly to the approximately 100 cable systems then operating in the
State.  See App. to Pet. for Cert. in No. 90-38, p. 12a.  While none of the
seven scrambled satellite broadcast services then available in Arkansas,
Tr. 12 (Aug. 19, 1987), was taxed until Act 769 became effective, Arkansas'
extension of its sales tax to cable television hardly resembles a "penalty
for a few."  See Minneapolis Star, supra, at 592; Arkansas Writers', supra,
at 229, and n. 4.
    The danger from a tax scheme that targets a small number of speakers is
the danger of censorship; a tax on a small number of speakers runs the risk
of affecting only a limited range of views.  The risk is similar to that
from content-based regulation: it will distort the market for ideas.  "The
constitutional right of free expression is . . . intended to remove
governmental restraints from the arena of public discussion, putting the
decision as to what views shall be voiced largely into the hands of each of
us . . . in the belief that no other approach would comport with the
premise of individual dignity and choice upon which our political system
rests."  Cohen v. California, 403 U. S. 15, 24 (1971).  There is no
comparable danger from a tax on the services provided by a large number of
cable operators offering a wide variety of programming throughout the
State.  That the Arkansas Supreme Court found cable and satellite
television to be the same medium does not change this conclusion.  Even if
we accept this finding, the fact remains that the tax affected
approximately 100 suppliers of cable television services.  This is not a
tax structure that resembles a penalty for particular speakers or
particular ideas.
    Finally, Arkansas' sales tax is not content based.  There is nothing in
the language of the statute that refers to the content of mass media
communications.  Moreover, the record establishes that cable television
offers subscribers a variety of programming that presents a mixture of
news, infor mation, and entertainment.  It contains no evidence, nor is it
contended, that this material differs systematically in its message from
that communicated by satellite broadcast programming, newspapers, or
magazines.
    Because the Arkansas sales tax presents none of the First Amendment
difficulties that have led us to strike down differential taxation in the
past, cable petitioners can prevail only if the Arkansas tax scheme
presents "an additional basis" for concluding that the State has violated
petitioners First Amendment rights.  See Arkansas Writers', supra, at 233.
Petitioners argue that such a basis exists here: Arkansas' tax
discriminates among media and, if the Arkansas Su preme Court's conclusion
regarding cable and satellite television is accepted, discriminated for a
time within a medium.  Petitioners argue that such intermedia and
intramedia discrimination, even in the absence of any evidence of intent to
suppress speech or of any effect on the expression of particular ideas,
violates the First Amendment.  Our cases do not support such a rule.
    Regan v. Taxation with Representation of Washington, 461 U. S. 540
(1983), stands for the proposition that a tax scheme that discriminates
among speakers does not implicate the First Amendment unless it
discriminates on the basis of ideas.  In that case, we considered
provisions of the Internal Revenue Code that discriminated between
contributions to lobbying organizations.  One section of the Code conferred
tax-exempt status on certain nonprofit organizations that did not engage in
lobbying activities.  Contributions to those organizations were deductible.
Another section of the Code conferred tax-exempt status on certain other
nonprofit organizations that did lobby, but contributions to them were not
deductible.  Taxpayers contributing to veterans' organizations were,
however, permitted to deduct their contributions regardless of those
organizations' lobbying activities.
    The tax distinction between these lobbying organizations did not
trigger heightened scrutiny under the First Amendment.  Id., at 546-551.
We explained that a legislature is not required to subsidize First
Amendment rights through a tax exemption or tax deduction. {3}  Id., at
546.  For this proposition, we relied on Cammarano v. United States, 358 U.
S. 498 (1959).  In Cammarano, the Court considered an Internal Revenue
regulation that denied a tax deduction for money spent by businesses on
publicity programs directed at pending state legislation.  The Court held
that the regulation did not violate the First Amendment because it did not
discriminate on the basis of who was spending the money on publicity or
what the person or business was advocating.  The regulation was therefore
"plainly not `aimed at the suppression of dangerous ideas.' "  Id., at 513,
quoting Speiser v. Randall, 357 U. S. 513, 519 (1958).
    Regan, while similar to Cammarano, presented the additional fact that
Congress had chosen to exempt from taxes contributions to veterans'
organizations, while not exempting other contributions.  This did not
change the analysis.  Inherent in the power to tax is the power to
discriminate in taxation.  "Legislatures have especially broad latitude in
creating classifications and distinctions in tax statutes."  Regan, supra,
at 547.  See also Madden v. Kentucky, 309 U. S. 83, 87-88 (1940); New York
Rapid Transit Corp. v. New York City, 303 U. S. 573, 578 (1938); Magoun v.
Illinois Trust & Savings Bank, 170 U. S. 283, 294 (1898).
    Cammarano established that the government need not exempt speech from a
generally applicable tax.  Regan established that a tax scheme does not
become suspect simply because it exempts only some speech.  Regan
reiterated in the First Amendment context the strong presumption in favor
of duly enacted taxation schemes.  In so doing, the Court quoted the rule
announced more than 40 years earlier in Madden, an equal protection case:

"The broad discretion as to classification possessed by a legislature in
the field of taxation has long been recognized. . . .  [T]he passage of
time has only served to underscore the wisdom of that recognition of the
large area of discretion which is needed by a legislature in formulating
sound tax policies.  Traditionally classification has been a device for
fitting tax programs to local needs and usages in order to achieve an
equitable distribution of the tax burden.  It has, because of this, been
pointed out that in taxation, even more than in other fields, leg islatures
possess the greatest freedom in classification.  Since the members of a
legislature necessarily enjoy a familiarity with local conditions which
this Court cannot have, the presumption of constitutionality can be
overcome only by the most explicit demonstration that a classification is a
hostile and oppressive discrimination against particular persons and
classes."  Madden, supra, at 87-88 (footnotes omitted), quoted in Regan,
461 U. S., at 547-548.


    On the record in Regan, there appeared no such "hostile and oppressive
discrimination."  We explained that "[t]he case would be different if
Congress were to discriminate invidiously in its subsidies in such a way as
to aim at the suppression of dangerous ideas."  Id., at 548 (internal
quotations omitted).  But that was not the case.  The exemption for
contributions to veterans' organizations applied without reference to the
content of the speech involved; it was not intended to suppress any ideas;
and there was no demonstration that it had that effect.  Ibid.  Under these
circumstances, the selection of the veterans' organizations for a tax
preference was "obviously a matter of policy and discretion."  Id., at 549
(internal quotations omitted).
    That a differential burden on speakers is insufficient by itself to
raise First Amendment concerns is evident as well from Mabee v. White
Plains Publishing Co., 327 U. S. 178 (1946), and Oklahoma Press Publishing
Co. v. Walling, 327 U. S. 186 (1946).  Those cases do not involve taxation,
but they do involve government action that places differential burdens on
members of the press.  The Fair Labor Standards Act of 1938, 52 Stat. 1060,
as amended, 29 U. S. C. MDRV 201 et. seq., applies generally to newspapers
as to other businesses, but it exempts from its requirements certain small
papers.  MDRV 213(a)(8).  Publishers of larger daily newspapers argued that
the differential burden thereby placed on them violates the First
Amendment.  The Court upheld the exemption because there was no indication
that the government had singled out the press for special treatment,
Walling, supra, at 194, or that the exemption was a " `deliberate and
calculated device' " to penalize a certain group of newspapers, Mabee,
supra, at 184, quoting Grosjean, 297 U. S., at 250.
    Taken together, Regan, Mabee, and Oklahoma Press 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.  That was the case in
Grosjean, Minneapolis Star, and Arkansas Writers', but it is not the case
here.  The Arkansas Legislature has chosen simply to exclude or exempt
certain media from a generally applicable tax.  Nothing about that choice
has ever suggested an in terest in censoring the expressive activities of
cable tele vision.  Nor does anything in this record indicate that
Arkansas' broad-based, content-neutral sales tax is likely to stifle the
free exchange of ideas.  We conclude that the State's 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.
    Before the Arkansas Chancery Court, cable petitioners contended that
the State's tax distinction between cable and other media violated the
Equal Protection Clause of the Fourteenth Amendment as well as the First
Amendment.  App. to Pet. for Cert. in No. 90-38, p. 21a.  The Chancery
Court rejected both claims, and cable petitioners challenged these holdings
before the Arkansas Supreme Court.  That Court did not reach the equal
protection question as to the State's temporary tax distinction between
cable and satellite services because it disallowed that distinction on
First Amendment grounds.  We leave it to the Arkansas Supreme Court to
address this question on remand.
    For the foregoing reasons, the judgment of the Arkansas Supreme Court
is affirmed in part and reversed in part, and the cases are remanded for
further proceedings not inconsistent with this opinion.

It is so ordered.


------------------------------------------------------------------------------
1
    Cable systems receive television, radio, or other signals through
antennae located at their so-called "headends."  Information gathered in
this way, as well as any other material that the system operator wishes to
transmit, is then conducted through cables strung over utility poles and
through underground conduits to subscribers.  See generally D. Brenner, M.
Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video: Law
and Policy MDRV 1.03 (1989).

2
    Satellite television broadcast services transmit over-the-air
"scrambled" signals directly to the satellite dishes of subscribers, who
must pay for the right to view the signals.  See generally A. Easton & S.
Easton, The Complete Sourcebook of Home Satellite TV 57-66 (1988).

3
    Certain amici in support of cable petitioners argue that Regan is
distinguishable from this case because the petitioners in Regan were
complaining that their contributions to lobbying organizations should be
tax deductible, while cable petitioners complain that sales of their
services should be tax exempt.  This is a distinction without a difference.
As we explained in Regan, "[b]oth tax exemptions and tax deductibility are
a form of subsidy that is administered through the tax system."  Regan, 461
U. S., at 544.





Subject: 90-29 & 90-38 -- DISSENT, LEATHERS v. MEDLOCK

 


    SUPREME COURT OF THE UNITED STATES


Nos. 90-29 and 90-38



TIMOTHY J. LEATHERS, COMMISSIONER OF
REVENUES OF ARKANSAS, PETITIONER
v.
90-29
DANIEL L. MEDLOCK et al.



DANIEL L. MEDLOCK, et al., PETITIONERS
v.
90-38
TIMOTHY J. LEATHERS, COMMISSIONER
OF REVENUES, et al.


on writs of certiorari to the supreme court of arkansas

[April 16, 1991]



    Justice Marshall, with whom Justice Blackmun joins, dissenting.
    This Court has long recognized that the freedom of the press prohibits
government from using the tax power to discriminate against individual
members of the media or against the media as a whole.  See Grosjean v.
American Press Co., 297 U. S. 233 (1936); Minneapolis Star & Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575 (1983); Arkansas Writers'
Project, Inc. v. Ragland, 481 U. S. 221 (1987).  The Framers of the First
Amendment, we have explained, specifically intended to prevent government
from using disparate tax burdens to impair the untrammeled dissemination of
information.  We granted certiorari in this case to consider whether the
obligation not to discriminate against individual members of the press
prohibits the State from taxing one information medium -- cable television
-- more heavily than others.  The majority's answer to this question --
that the State is free to discriminate between otherwise likesituated media
so long as the more heavily taxed medium is not too "small" in number -- is
no answer at all, for it fails to explain which media actors are entitled
to equal tax treatment.  Indeed, the majority so adamantly proclaims the
irrelevance of this problem that its analysis calls into question whether
any general obligation to treat media actors evenhandedly survives today's
decision.  Because I believe the majority has unwisely cut back on the
principles that inform our selective-taxation precedents, and because I
believe that the First Amendment prohibits the State from singling out a
particular information medium for heavier tax burdens than are borne by
like-situated media, I dissent.
I


A
    Our decisions on selective taxation establish a nondiscrimination
principle for like-situated members of the press.  Under this principle,
"differential treatment, unless justified by some special characteristic of
the press, . . . is presumptively unconstitutional," and must be struck
down "unless the State asserts a counterbalancing interest of compelling
importance that it cannot achieve without differential taxation."
Minneapolis Star, supra, at 585.
    The nondiscrimination principle is an instance of government's general
First Amendment obligation not to interfere with the press as an
institution.  As the Court explained in Grosjean, the purpose of the Free
Press Clause "was to preserve an untrammeled press as a vital source of
public information."  297 U. S., at 250.  Reviewing both the historical
abuses associated with England's infamous " `taxes on knowledge' " and the
debates surrounding ratification of the Constitution, see id., at 246-250;
Minneapolis Star, 460 U. S., at 583-586, and nn. 6-7, our decisions have
recognized that the Framers viewed selective taxation as a distinctively
potent "means of abridging the freedom of the press," id., at 586, n. 7.
    We previously have applied the nondiscrimination principle in two
contexts.  First, we have held that this principle prohibits the State from
imposing on the media tax burdens not borne by like-situated nonmedia
enterprises.  Thus, in Minneapolis Star, we struck down a use tax that
applied to the ink and paper used in newspaper production but not to any
other item used as a component of a good to be sold at retail.  See id., at
578, 581-582.  Second, we have held that the nondiscrimination principle
prohibits the State from taxing individual members of the press unequally.
Thus, as an alternative ground in Minneapolis Star, we concluded that the
State's use tax violated the First Amendment because it exempted the first
$100,000 worth of ink and paper consumed and thus effectively singled out
large publishers for a disproportionate tax burden.  See id., at 591-592.
Similarly, in Arkansas Writers' Project, we concluded that selective
exemptions for certain periodicals rendered unconstitutional the
application of a general sales tax to the remaining periodicals "because
[the tax] [was] not evenly applied to all magazines."  See 481 U. S., at
229 (emphasis added); see also Grosjean v. American Press Co., supra (tax
applied only to newspapers that meet circulation threshold
unconstitutionally discriminates against more widely circulated
newspapers).
    Before today, however, we had not addressed whether the
nondiscrimination principle prohibits the State from singling out a
particular information medium for tax burdens not borne by other media.
Grosjean and Minneapolis Star both invalidated tax schemes that
discriminated between different members of a single medium, namely,
newspapers.  Similarly, Arkansas Writers' Project invalidated a general
sales tax because it "treat[ed] some magazines less favorably than others,"
481 U. S., at 229, leaving open the question whether less favorable tax
treatment of magazines than of newspapers furnished an additional ground
for invalidating the scheme, see id., at 233.  This case squarely presents
the question whether the State may discriminate between distinct
information media, for under Arkansas' general sales tax scheme, cable
operators pay a sales tax on their subscription fees that is not paid by
newspaper or magazine companies on their subscription fees or by television
or radio broadcasters on their advertising revenues. {1}  In my view, the
principles that animate our selective-taxation cases clearly condemn this
form of discrimination.
B
    Although cable television transmits information by distinctive means,
the information service provided by cable does not differ significantly
from the information services provided by Arkansas' newspapers, magazines,
television broadcasters, and radio stations.  This Court has recognized
that cable operators exercise the same core press function of
"communication of ideas as do the traditional enterprises of newspaper and
book publishers, public speakers, and pamphleteers," Los Angeles v.
Preferred Communications, Inc., 476 U. S. 488, 494 (1986), and that
"[c]able operators now share with broadcasters a significant amount of
editorial discretion regarding what their programming will include," FCC v.
Midwest Video Corp., 440 U. S. 689, 707 (1979).  See also ante, at 4
(acknowledging that cable television is "part of the `press' ").  In
addition, the cable-service providers in this case put on extensive and
unrebutted proof at trial designed to show that consumers regard the news,
sports, and entertainment features provided by cable as largely
interchangeable with the services provided by other members of the print
and electronic media.  See App. 81-85, 100-101, 108, 115, 133-137, 165-170.
See generally Competition, Rate Deregulation and the Commission's Policies
Relating to Provision of Cable Television Service, 5 FCC Record 4962, 4967
(1990) (discussing competition between cable and other forms of
television).
    Because cable competes with members of the print and electronic media
in the larger information market, the power to discriminate between these
media triggers the central concern underlying the nondiscrimination
principle: the risk of covert censorship.  The nondiscrimination principle
protects the press from censorship prophylactically, condemning any
selective-taxation scheme that presents the "potential for abuse" by the
State, Minneapolis Star, 460 U. S., at 592 (emphasis added), independent of
any actual "evidence of an improper censorial motive," Arkansas Writers'
Project, supra, at 228; see Minneapolis Star, supra, at 592 ("Illicit
legislative intent is not the sine qua non of a violation of the First
Amendment").  The power to discriminate among likesituated media presents
such a risk.  By imposing tax burdens that disadvantage one information
medium relative to another, the State can favor those media that it likes
and punish those that it dislikes.
    Inflicting a competitive disadvantage on a disfavored medium violates
the First Amendment "command that the government . . . shall not impede the
free flow of ideas."  Associated Press v. United States, 326 U. S. 1, 20
(1945).  We have previously recognized that differential taxation within an
information medium distorts the marketplace of ideas by imposing on some
speakers costs not borne by their competitors.  See Grosjean, 297 U. S., at
241, 244-245 (noting competitive disadvantage arising from differential tax
based on newspaper circulation).  Differential taxation across different
media likewise "limit[s] the circulation of information to which the public
is entitled," id., at 250, where, as here, the relevant media compete in
the same information market.  By taxing cable television more heavily
relative to its social cost than newspapers, magazines, broadcast
television and radio, Arkansas distorts consumer preferences for particular
information formats, and thereby impairs "the widest possible dissemination
of information from diverse and antagonistic sources."  Associated Press v.
United States, supra, at 20.
    Because the power selectively to tax cable operators triggers the
concerns that underlie the nondiscrimination principle, the State bears the
burden of demonstrating that "differential treatment" of cable television
is justified by some "special characteristic" of that particular
information medium or by some other "counterbalancing interest of
compelling importance that [the State] cannot achieve without differential
taxation."  Minneapolis Star, supra, at 585 (footnote omitted).  The State
has failed to make such a showing in this case.  As the Arkansas Supreme
Court found, the amount collected from the cable operators pursuant to the
state sales tax does not correspond to any social cost peculiar to
cabletelevision service, see 301 Ark. 483, 485, 785 S. W. 2d 202, 203
(1990); indeed, cable operators in Arkansas must pay a franchise fee
expressly designed to defray the cost associated with cable's unique
exploitation of public rights of way.  See ibid.  The only justification
that the State asserts for taxing cable operators more heavily than
newspapers, magazines, television broadcasters and radio stations is its
interest in raising revenue.  See Brief for Respondents in No. 90-38, p. 9.
This interest is not sufficiently compelling to overcome the presumption of
unconstitutionality under the nondiscrimination principle.  See Arkansas
Writers' Project, 481 U. S., at 231-232; Minneapolis Star, supra, at 586.
{2}
II
    The majority is undisturbed by Arkansas' discriminatory tax regime.
According to the majority, the power to single out cable for heavier tax
burdens presents no realistic threat of governmental abuse.  The majority
also dismisses the notion that the State has any general obligation to
treat members of the press evenhandedly.  Neither of these conclusions is
supportable.
A
    The majority dismisses the risk of governmental abuse under the
Arkansas tax scheme on the ground that the number of media actors exposed
to the tax is "large."  Ante, at 9.  According to the majority, where a tax
is generally applicable to nonmedia enterprises, the selective application
of that tax to different segments of the media offends the First Amendment
only if the tax is limited to "a small number of speakers," ante, at 8, for
it is only under those circumstances that selective taxation "resembles a
penalty for particular speakers or particular ideas," ante, at 9.  The
selective sales tax at issue in Arkansas Writers' Project, the majority
points out, applied to no more than three magazines.  See ante, at 8.  The
tax at issue here, "[i]n contrast," applies "uniformly to the approximately
100 cable systems" in operation in Arkansas.  Ibid. (emphasis added).  In
my view, this analysis is overly simplistic and is unresponsive to the
concerns that inform our selective-taxation precedents.
    To start, the majority's approach provides no meaningful guidance on
the intermedia scope of the nondiscrimination principle.  From the
majority's discussion, we can infer that three is a sufficiently "small"
number of affected actors to trigger First Amendment problems and that one
hundred is too "large" to do so.  But the majority fails to pinpoint the
magic number between three and one hundred actors above which
discriminatory taxation can be accomplished with impunity.  Would the
result in this case be different if Arkansas had only 50 cable-service
providers?  Or 25?  The suggestion that the First Amendment prohibits
selective taxation that "resembles a penalty" is no more helpful.  A test
that turns on whether a selective tax "penalizes" a particular medium
presupposes some baseline establishing that medium's entitlement to
equality of treatment with other media.  The majority never develops any
theory of the State's obligation to treat like-situated media equally,
except to say that the State must avoid discriminating against too "small"
a number of media actors.
    In addition, the majority's focus on absolute numbers fails to reflect
the concerns that inform the nondiscrimination principle.  The theory
underlying the majority's "small versus large" test is that "a tax on the
services provided by a large number of cable operators offering a wide
variety of programming throughout the State," ante, at 9, poses no "risk of
affecting only a limited range of views," ante, at 8.  This assumption is
unfounded.  The record in this case furnishes ample support for the
conclusion that the State's cable operators make unique contributions to
the information market.  See, e. g., App. 82 (testimony of cable operator
that he offers "certain religious programming" that "people demand . . .
because they otherwise could not have access to it"); id., at 138 (cable
offers Spanish-language information network); id., at 150 (cable broadcast
of local city council meetings).  The majority offers no reason to believe
that programs like these are duplicated by other media.  Thus, to the
extent that selective taxation makes it harder for Arkansas' 100 cable
operators to compete with Arkansas' 500 newspapers, magazines, and
broadcast television and radio stations, see 1 Gale Directory of
Publications and Broadcast Media 67-68 (123d ed. 1991), Arkansas'
discriminatory tax does "risk . . . affecting only a limited range of
views," and may well "distort the market for ideas" in a manner akin to
direct "contentbased regulation."  Ante, at 8. {3}
    The majority also mistakenly assesses the impact of Arkansas'
discriminatory tax as if the State's 100 cable operators comprised 100
additional actors in a statewide information market.  In fact, most
communities are serviced by only a single cable operator.  See generally 1
Gale Directory, supra, at 69-91.  Thus, in any given locale, Arkansas'
discriminatory tax may disadvantage a single actor, a "small" number even
under the majority's calculus.
    Even more important, the majority's focus on absolute numbers ignores
the potential for abuse inherent in the State's power to discriminate based
on medium identity.  So long as the disproportionately taxed medium is
sufficiently "large," nothing in the majority's test prevents the State
from singling out a particular medium for higher taxes, either because the
State does not like the character of the services that the medium provides
or because the State simply wishes to confer an advantage upon the medium's
competitors.
    Indeed, the facts of this case highlight the potential for governmental
abuse inherent in the power to discriminate among like-situated media based
on their identities.  Before this litigation began, most receipts generated
by the media -- including newspaper sales, certain magazine subscription
fees, print and electronic media advertising revenues, and cable television
and scrambled-satellite television subscription fees -- were either
expressly exempted from, or not expressly included in, the Arkansas sales
tax.  See Ark. Code. Ann. 15 84-1903, 84-1904(f), (j), (1947 and Supp.
1985); see also Arkansas Writers' Project, 481 U. S., at 224-225.
Effective July 1, 1987, however, the legislature expanded the tax base to
include cable television subscription fees.  See App. to Pet. for Cert. in
No. 90-38, p. 16a.  Cable operators then filed this suit, protesting the
discriminatory treatment in general and the absence of any tax on
scrambled-satellite television -- cable's closest rival -- in particular.
While the case was pending on appeal to the Arkansas Supreme Court, the
Arkansas legislature again amended the sales tax, this time extending the
tax to the subscription fees paid for scrambled satellite television.  301
Ark., at 484, 785 S. W. 2d, at 203.  Of course, for all we know, the
legislature's initial decision selectively to tax cable may have been
prompted by a similar plea from traditional broadcast media to curtail
competition from the emerging cable industry.  If the legislature did
indeed respond to such importunings, the tax would implicate government
censorship as surely as if the government itself disapproved of the new
competitors.
    As I have noted, however, our precedents do not require "evidence of an
improper censorial motive," Arkansas Writers' Project, supra, at 228,
before we may find that a discriminatory tax violates the Free Press
Clause; it is enough that the application of a tax offers the "potential
for abuse," Minneapolis Star, 460 U. S., at 492 (emphasis added).  That
potential is surely present when the legislature may, at will, include or
exclude various media sectors from a general tax.
B
    The majority, however, does not flinch at the prospect of intermedia
discrimination.  Purporting to draw on Regan v. Taxation With
Representation of Washington, 461 U. S. 540 (1983) -- a decision dealing
with the tax-deductibility of lobbying expenditures -- the majority
embraces "the proposition that a tax scheme that discriminates among
speakers does not implicate the First Amendment unless it discriminates on
the basis of ideas."  Ante, at 9-10 (emphasis added).  "[T]he power to
discriminate in taxation," the majority insists, is "[i]nherent in the
power to tax."  Ante, at 11.
    Read for all they are worth, these propositions would essentially
annihilate the nondiscrimination principle, at least as it applies to tax
differentials between individual members of the press.  If Minneapolis
Star, Arkansas Writers' Project, and Grosjean stand for anything, it is
that the "power to tax" does not include "the power to discriminate" when
the press is involved.  Nor is it the case under these decisions that a tax
regime that singles out individual members of the press implicates the
First Amendment only when it is "directed at, or presents the danger of
suppressing, particular ideas."  Ante, at 13 (emphasis added).  Even when
structured in a manner that is content neutral, a scheme that imposes
differential burdens on like-situated members of the press violates the
First Amendment because it poses the risk that the State might abuse this
power.  See Minneapolis Star, supra, at 592.
    At a minimum, the majority incorrectly conflates our cases on selective
taxation of the press and our cases on the selective taxation (or
subsidization) of speech generally.  Regan holds that the government does
not invariably violate the Free Speech Clause when it selectively
subsidizes one group of speakers according to content-neutral criteria.
This power, when exercised with appropriate restraint, inheres in
government's legitimate authority to tap the energy of expressive activity
to promote the public welfare.  See Buckley v. Valeo, 424 U. S. 1, 90-97
(1976).
    But our cases on the selective taxation of the press strike a different
posture.  Although the Free Press Clause does not guarantee the press a
preferred position over other speakers, the Free Press Clause does
"protec[t] [members of press] from invidious discrimination."  L. Tribe,
American Constitutional Law MDRV 12-20, p. 963 (2d ed. 1988).  Selective
taxation is precisely that.  In light of the Framers' specific intent "to
preserve an untrammeled press as a vital source of public information,"
Grosjean, 297 U. S., at 250; see Minneapolis Star, supra, at 585, n. 7, our
precedents recognize that the Free Press Clause imposes a special
obligation on government to avoid disrupting the integrity of the
information market.  As Justice Stewart explained:

"[T]he Free Press guarantee is, in essence, a structural provision of the
Constitution.  Most of the other provisions in the Bill of Rights protect
specific liberties or specific rights of individuals: freedom of speech,
freedom of worship, the right to counsel, the privilege against compulsory
self-incrimination, to name a few.  In contrast, the Free Press Clause
extends protection to an institution."  Stewart, "Or of the Press," 26
Hastings L. J. 631, 633 (1975) (emphasis in original).


    Because they distort the competitive forces that animate this
institution, tax differentials that fail to correspond to the social cost
associated with different information media, and that are justified by
nothing more than the State's desire for revenue, violate government's
obligation of evenhandedness.  Clearly, this is true of disproportionate
taxation of cable television.  Under the First Amendment, government simply
has no business interfering with the process by which citizens' preferences
for information formats evolve. {4}
    Today's decision unwisely discards these teachings.  I dissent.
 
 
 
 
 
 

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1
    Subject to various exemptions, Arkansas law imposes a 4% tax on the
receipts from sales of all tangible personal property and of specified
services.  Ark. Code. Ann. 15 26-52-301, 26-52-302, 26-52-401 (1987 and
Supp. 1989).  Cable television service is expressly included in the tax.
See MDRV 26-52-301(D)(i) (Supp. 1989).  Proceeds from the sale of
newspapers, MDRV 26-52-401(4) (Supp. 1989), and from the sale of magazines
by subscription, MDRV 26-52-401(14) (Supp. 1989); Revenue Policy Statement
1988-1 (Mar. 10, 1988), reprinted in CCH Ark. Tax Rep. MDRV 69-415, are
expressly exempted, as are the proceeds from the sale of advertising in
newspapers and other publications, MDRV 26-52-401(13) (Supp. 1989).
Proceeds from the sale of advertising for broadcast radio and television
services are not included in the tax.
    Insofar as the Arkansas Supreme Court found that cable and scrambled
satellite television are a single medium, 301 Ark. 483, 487, 785 S. W. 2d
202, 204-205 (1990), this case also involves a straightforward application
of Arkansas Writers' Project and Minneapolis Star in resolving the cable
operators' constitutional challenge to the taxes that they paid prior to
1989, the year in which Arkansas amended its sales tax to include the
subscription fees collected by scrambled-satellite television.  I would
affirm on that basis the Arkansas Supreme Court's conclusion that the
pre-1989 version of the Arkansas sales tax violated the First Amendment by
imposing on cable a tax burden not borne by its scrambled satellite
television.


2
    I need not consider what, if any, state interests might justify
selective taxation of cable television, since the State has advanced no
interest other than revenue enhancement.  I also do not dispute that the
unique characteristics of cable may justify special regulatory treatment of
that medium.  See Los Angeles v. Preferred Communications, Inc., 476 U. S.
488, 496 (1986) (Blackmun, J., concurring); cf. Red Lion Broadcasting Co.
v. FCC, 395 U. S. 367, 386-401 (1969).  I conclude only that the State is
not free to burden cable with a selective tax absent a clear nexus between
the tax and a "special characteristic" of cable television service or a
"counterbalancing interest of compelling importance."  Minneapolis Star,
460 U. S., at 585.


3
    Even if it did happen to apply neutrally across the range of viewpoints
expressed in the Arkansas information market, Arkansas' discriminatory tax
would still raise First Amendment problems.  "It hardly answers one
person's objection to a restriction on his speech that another person,
outside his control, may speak for him."  Regan v. Taxation with
Representation of Washington, 461 U. S. 540, 553 (1983) (Blackmun, J.,
concurring).


4
    The majority's reliance on Mabee v. White Plains Publishing Co., 327 U.
S. 178 (1946), and Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186
(1946), is also misplaced.  At issue in those cases was a provision that
exempted small newspapers with primarily local distribution from the Fair
Labor Standards Act of 1938 (FLSA).  In upholding the provision, the Court
noted that the exemption promoted a legitimate interest in placing the
exempted papers "on a parity with other small town enterprises" that also
were not subject to regulation under the FLSA.  Mabee, supra, at 184; see
also Oklahoma Press, supra, at 194.  In Minneapolis Star, we distinguished
these cases on the ground that, unlike the FLSA exemption, Minnesota's
discrimination between large and small newspapers did not derive from, or
correspond to, any general state policy to benefit small businesses.  See
460 U. S., at 592, and n. 16.  Similarly, Arkansas' discrimination against
cable operators derives not from any general, legitimate state policy
unrelated to speech but rather from the simple decision of state officials
to treat one information medium differently from all others.  Thus, like
the schemes in Arkansas Writers' Project and Minneapolis Star, but unlike
the scheme at issue in Mabee and Oklahoma Press, the Arkansas tax scheme
must be supported by a compelling interest to survive First Amendment
scrutiny.  Cf. United States v. O'Brien, 391 U. S. 367, 377 (1968).

