December 22, 2007

Bring an Extra $5 to the Strip Club

by PG

After years of debating the measure, the Texas Legislature finally passed a $5 surcharge for entry to a strip club, with the proceeds now going to help sexual assault victims rather than to elementary and secondary schools. (I'm really surprised that they didn't make the obvious connection and have the money go toward tuition assistance, considering the cliche that young women strip to pay their way through college.) Because an Austin judge refused to block the law's implementation pending the resolution of a lawsuit against it, it goes into effect on New Year's Day. I'm indifferent to the strip club tax as a matter of policy; I have no moral objection to either taxes or strip clubs, though I do find patrons of the latter a bit pathetic and thus am perhaps less concerned about their welfare than I otherwise would be. I found this statement, however, to be ludicrous:

Jonathan Turley, a constitutional law expert at George Washington University, said the Texas tax goes too far. ''It seems clear legislators are targeting strip clubs because they're unpopular,'' Turley said. ''Laws like this would expose any unpopular industry to punitive taxes. It could be abortion clinics.''
I have several legal objections to Turley's claim.

1) Legislators are taxing strip clubs because they're as unpopular in Texas as beer -- that is, because they're not unpopular at all, and the tax will result in many golden eggs without killing the goose. Despite its conservative reputation, Texas has lots of strip clubs; my hometown of less than 30,000 people, where the AP Biology teacher did not believe in evolution, has one.

2) The Lege is not trying to punish strip clubs, which is what the literal meaning of punitive implies. If the Texas government really wanted to make life difficult for strip clubs, it would be pressuring Houston to impose zoning for adult businesses. At the moment, sex store Zone d'Erotica has an establishment next to the Galleria, and at least one club with male strippers is nearby. Houston women can buy shoes, a vibrator and a lapdance within four blocks. As the original idea to have the money go to school indicates, the Lege is strapped for cash, particularly for education, and is trying to find sources of tax revenue without imposing a state income tax. Like beer, strip clubs are deemed a kind of luxury good, not a necessity, and therefore taxing them is politically acceptable.

3) It's also constitutionally acceptable. While the power to tax is of course the power to destroy, a $5 surcharge is unlikely to destroy the strip club industry in Texas. A beer and a decent indication of appreciation to the floor dancer, never mind a personal lapdance, will total $5. Moreover, there is no constitutional right to be paid for taking one's clothes off, whereas there is a constitutional right not to be unduly burdened in seeking an abortion. The existing jurisprudence on strip clubs focuses on the dancers' expressive claim: that they should be able to dance and to do it naked/ topless. A surcharge on abortions might unconstitutionally burden a woman's right to seek an abortion, particularly in states that have expressed a longstanding hostility and obstructionist policy toward abortion. A surcharge on strip club patrons can hardly burden a stripper's right to express herself; she dances whether there's one guy in the club or twenty. Turley's comparison would work if the tax were on the strippers themselves, e.g. requiring the club to pay the government each time an employee gets on the pole -- thus burdening the strippers' freedom of expression -- but not for a tax on clients.

December 22, 2007 12:11 AM | TrackBack

Saw this story, coming especially as it does in the holiday season, and I almost cried. Is nothing sacred anymore?

What's next? A tax on babies' smiles? On puppies?

On rainbows?

Posted by: Tony Iovino at December 22, 2007 06:36 AM

Witness the beauty of federalism: take your business to Oregon instead, where the state Supreme Court found that the Oregon constitution's free speech provision means the government can't prohibit live sex shows.

State constitutions frequently are deemed more protective of rights than the federal constitution. For example, in the Kandyland case where a majority of the U.S. Supreme Court decided that Erie could mandate pasties under the U.S. Constitution, the PA Supreme Court said they couldn't under the PA constitution.

Posted by: PG at December 22, 2007 04:23 PM

PG--great concept--but how do you get from Texas to Oregon, and back, on $5?

Posted by: Tony Iovino at December 23, 2007 12:00 PM

So is it ok to have a $5 tax on newspapers? Blogs? Singing in public?
(I wasn't clear if these places were all bars, and subject to a certain amount of alcohol-related regulation, or not.) The intimate associational interests between me and my lapdancer justify application of Roe right to privacy.

Posted by: 'vark at December 26, 2007 12:39 AM

Hey, the other proponents of federalism always seem to ignore the cost of moving from one state to another, so why can't I?

I'm confused as to how you would see this $5 tax on blogs or singing in public administered. I assume a $5 tax on newspapers would work by adding it to the cost of buying the paper, such that a paper would cost $6 instead of $1. But blogs are free, and hearing someone sing in public (by which I'm guessing you mean a street corner or similar venue; I've paid over $5 in taxes to hear for-profit musical performances) also is free. How would you collect a tax? I think a $5 tax on all newspapers would be constitutionally acceptable so long as there were no exceptions made based on the views promoted by the newspaper. I'd be intensely suspicious of a tax that affected the NYTimes but not the WashTimes.

Governments often put special taxes on what they think will bear it, as in the "tourist taxes" that result in a higher sales tax rate on hotels than on, say, manicures.

Posted by: PG at December 27, 2007 03:48 PM
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