From a story in the Houston Chronicle – The Texas Supreme Court has decided to review the legality of charging a $5-per-person “pole tax” to patrons of strip clubs and other adult entertainment venues, a case that has hinged on whether the government can tax content protected by the First Amendment.
The law, passed in the 2007 legislative session, originally directed revenues collected from the fee toward sexual abuse and violence treatment and prevention programs, but it has been mired in legal wrangling almost since it took effect in 2008.
“I’m extremely happy that they agreed to hear the case,” said State Rep. Ellen Cohen, who sponsored the legislation and filed an amicus brief urging the court to review the matter. “If you’re going to do this, you need to raise a substantial enough amount of money to make a dramatic effect on issues surrounding sexual violence. The way we fashioned it was absolutely the correct way and the most reasoned way.”
The law was struck down in March 2008, by a Travis County District Court judge, a ruling that was upheld in June by the Austin-based 3rd Court of Appeals. The state has collected more than $12 million in fees that have been held in escrow pending the final outcome of the case.
Attorney General Greg Abbott, whose office is scheduled to defend the law in oral arguments March 25, declined comment Friday, as did Stewart Whitehead, an attorney representing an adult business association that brought the original suit.
David A. Furlow, a former Harris County prosecutor who has represented businesses in numerous cases involving First Amendment protections, said the central issue is whether the government can levy a tax on speech, such as a newspaper or TV show or dancing in a strip club, that has the effect of singling it out.
“When you say certain types of messages and certain types of entertainment can be taxed, you begin down a slippery slope that can allow the government to destroy a form of business by taxing it out of existence,” he said. “You start down a pathway that could lead to censorship-based government like that which exists in Iran.”
To defend the law, the government has been forced to argue that strip clubs lead to greater violence against women, a claim for which there is no evidence, Furlow said. Under such logic, he added, R-rated movies could be taxed because of the violence sometimes depicted in them.
Robert Jensen, a journalism professor at the University of Texas at Austin who teaches media law and ethics, acknowledged that it is difficult to prove a link between strip clubs and violence against women.
“But the fact that research doesn’t allow for those causal links doesn’t mean that the sexual exploitation industry is not part of an environment that supports and undergirds sexual violence,” he said.
The Utah Supreme Court upheld a similar law last November, arguing that it did not have the effect of restricting expression and served “an important state interest.”
