In 2004, the Utah legislature, being what it is (and what it is, is controlled largely by conservatives, both fiscal and social), passed a 10% tax on everything sold by strip clubs. Burgers, t-shirts, drinks, key chains, bobble heads, etc. Everything. If you’re a strip club and you sell something, then the Utah legislature gets 10%. Because the tax was levied solely against, as the bill is labeled, Sexually Explicit Business and Escort Services, the tax came to be known as the “pole tax.”
That’s a First Amendment violation, the clubs said.
Denali features full frontal nudity, while America Bush has plans to introduce nudity into its performances.
“In this case, the tax is triggered by nudity, which the (U.S.) Supreme Court has specifically declared ‘is not an inherently expressive condition,'” Durrant wrote in the majority opinion. “We find nothing in the record before us — either (in) the tax’s legislative history or in the text of the tax itself — establishing that the tax was enacted with the predominant purpose of suppressing protected expression.”
In other words, the tax doesn’t suppress protected expression. It just makes it more expensive to see nudity.
First Amendment protections for nude dancing?
The Supreme Court dismissal aside, does the First Amendment ever cover nudity and sexually explicit businesses?
Ironically, the 10th Circuit Court of Appeals, which includes Utah, had addressed the issue of nude dancing just before the Utah Legislature’s “pole tax,” evaluating whether ordinances passed by the City of South Salt Lake could limit the extent to which exotic dancers could remove their clothes. As Justice Michael McConnell astutely noted, the Supreme Court has not been favorable to nude dancers in recent years.
Despite the theoretical uncertainties, however, the results themselves in these cases [speaking of those the US Supreme Court has ruled on] have been consistent: the practitioners of nude dancing have lost and the ordinances have been upheld. (Heideman v. South Salt Lake City, 348 F. 3d 1182 – Court of Appeals, 10th Circuit 2003)
(Aside: not having solicited one of these clubs before, I found it amusing that the dispute was over whether or not dancers had to wear “pasties,” which just cover their nipples, and g-strings, which just cover genitals. Really? At the point that all that is covering your skin is less than two postage stamps and a small napkin, aren’t you effectively naked, anyway? But I digress from the First Amendment discussion…)
The cases that McConnell is referring to are Barnes v. Glen Theatre, Inc., and City of Erie v. Pap’s A.M. In those cases, the court noted that, to summarize, nude dancing is expression covered under the First Amendment, “the outer perimeters,” and then “only marginally so.” (City of Erie noted that being in a “state of nudity” is not in itself expressive conduct, and so cannot merit First Amendment protections, but nude dancing is, and so falls under the “outer ambit” of the First Amendment.)
Because it is expressive behavior, then, however “marginally so[,]” the Supreme Court looks at the regulation of nude dancing under a standard that asks whether the regulation is related to suppression of speech, and if not, it receives a relatively low standard of scrutiny, and is more likely to be upheld. If the regulation does suppress speech, a higher standard is used before the regulation can be upheld. The Supreme Court is then likely to uphold a governmental regulation that is aimed at conduct, not speech, especially if the conduct has negative secondary effects. In City of Erie, the court notes that the Pennsylvania Supreme Court had upheld such ordinances that were explicitly targeted, in their language to nude dancing
which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects. 553 Pa., at 359, 719 A. 2d, at 279 citing the Erie, Pennsylvania ordinance.
Without dipping too far into the minutia of the Supreme Court’s opinion then, it appears that the court looked at the ordinance, determined that the activity of nude dancing is protected under the First Amendment (if just barely), but that government regulators can limit it when they have a good public policy reason for doing so, as long as that purpose is not the suppression of speech.
Utah’s tax justified?
Back to Utah: the tax on the adult clubs–the “pole tax”–doesn’t even remotely regulate or limit speech of the dancers. It makes purchasing anything in the club more expensive, but because, ostensibly, the purpose of the tax is to support treatment for sex offender treatment and a persecutor’s task force against internet predators, the Court, like the Utah Supreme Court, didn’t see any problem with it.
So what’s the other side of this? To quote, or summarize, Ronald Reagan, if you want something to stop moving, tax it. By placing a tax on strip clubs, Utah legislators are are acting to slow, or stop, strip clubs. Is it appropriate? Should government be in the line of choosing what businesses are moral and which are not? In this case, it’s probably appropriate. State legislators are selected by their constituents to pass laws that represent them. Public policy is most appropriately determined by the elected legislators, and in this case, legislators acted to protect the interests of the state at large, and yet not infringe on First Amendment rights by prohibiting the dancing. It’s a balancing act, and whether one agrees with such clubs’ existence in the first place, the process by which this tax came about is hard to find inappropriate.
- Court won’t reconsider tax targeting nude bars (seattletimes.nwsource.com)
- Court won’t reconsider tax targeting adult-oriented businesses ()