Admission charges at Chicago’s small music venues are generally exempt from tax. But a few years ago, officials came after clubs that hosted rock, hip-hop, country, and DJ performances, claiming that those kinds of music weren’t “commonly regarded as part of the fine arts.” Controversy exploded, critics derided the idea of turning tax collectors into “culture police,” and the law was quickly changed to avoid accusations of unconstitutionality. Plaintiffs across the country have similarly alleged that selective tax exemptions for certain arts but not others amount to unconstitutional content discrimination. They claim that the government has no business judging what is art or deciding what types of art to favor. But if this is so, then all levels of government in the United States have been acting unconstitutionally for an awfully long time. This Article recovers a largely forgotten history of federal taxation of the arts, dating back to World War I. Federal admissions and cabaret taxes grew large enough by the Second World War to change the course of music, hastening the decline of big band jazz, the death of tap, and the growth of bebop. Fights for exemptions embroiled Congress in debates over the value of various arts and their distinction from “mere” amusements like burlesque, band concerts, and the circus. And as the legislative history reveals, the lines that got drawn reflect the race, gender, and class disparities of the voices Congress heard during the nearly five decades the federal admissions tax remained in effect. Unearthing the historical context behind discriminatory tax exemptions like those in Chicago helps shed significant light on a notoriously difficult First Amendment problem: how to distinguish selective support of the arts from censorship. Perhaps surprisingly, the history bolsters the constitutionality of tax schemes like Chicago’s. But at the same time, the history shows that government meddling in the arts—not least through the tax code—runs far deeper than even its critics realize. Over the last century, tax law in the United States has not just discriminated among the arts; it has helped determine what gets counted among the arts in the first place. And as Chicago’s example proves, tax law continues to do this today, helping shape the perceived status and nature of performances by everyone from DJs to drag queens, and symphonies to strippers. Desirable as government subsidies for the arts might be, to see their effects is to realize the need for broader popular involvement in deciding who and what should receive them.
To read this Article, please click here: Tax Law as Muse.