Legal Commentary

It is a busy time for state efforts to tax nude dancing establishments as a way to support sexual assault victims--what have come to be known as "pole taxes." A bill pending in the Illinois legislature would impose a $ 1 per patron tax on nude-dancing establishments, with the money earmarked to cover a $ 1.4 million budget shortfall for funding of rape-crisis centers in the state. (Details here and here). In December, Texas enacted a $ 5-per-patron tax designed to generate $ 25 million for sexual-assault prevention. But last Friday a state court judge enjoined enforcement of the tax on First Amendment grounds. Why target strip clubs? According to one advocate supporting the Illinois proposal, "Strip clubs perpetuate (the notion) that women are for sale" and "[w]e want the money to come back to the people it could potentially harm.?

There seem to be significant First Amendment problems here. The tax singles out expressive conduct and those who want to engage in that conduct, whether by dancing, sponsoring dancing, or viewing nude dancing. It singles out particularly unpopular expressive conduct, a point Jonathan Turley made as to the Texas law. And it singles that conduct out explicitly because of the misogynist, anti-equality message supposedly sent by nude dancing. The judge in Texas found the tax was content-based and failed strict scrutiny, because the state failed to link nude dancing to the rape-crisis programs being funded. Imagine a state tries to achieve the same result by taxing adult movie theatres and patrons--that is more obviously a tax on speech and more obviously tied to the message of that speech. But given the doctrinal treatment of nude dancing as expressive activity, the constitutional analysis should be the same.

There have been some valiant attempts to get around the First Amendment objections by casting the tax in neutral terms. In Texas, the argument was that nude dancing is a business that largely employs women and rape is a crime that largely affects woman. But, as Turley argued, no other largely-female industries (beauty salons? women's clothing retailers?) are subject to the tax. In Illinois, the argument was made that the men who go to strip clubs may have mothers, wives, and daughters, one in three of whom will experience some form of sexual abuse or assault at some point--so these men should support the tax. Of course, all men, including those of us who do not frequent strip clubs, may have mothers, wives, and daughters who may need the services of rape-crisis centers.

So why single out only strip-clubs and strip-club patrons, unless it really is all about the message sent by nude dancing and those who operate and patronize such establishments?