Analysis: Texas Supreme Court to Review 'Pole Tax' Ruling

SAN ANTONIO—The Texas Supreme Court has agreed to hear the state's appeal from a ruling issued last June 5 by the 3rd Court of Appeals that struck down the state's attempt to charge a $5 admission tax on all adult nightclubs where sexual expression takes place. The proceeds of the tax were supposed to be used for sexual assault prevention, as well as to defray the cost of health insurance for low-income Texans—neither of which cause has anything to do with the expression being taxed.

The problems with the proposed tax were well analyzed by the appeals court's majority, with Justice Diane M. Henson pointing out in the court's ruling that, "A selective taxation scheme in which an entity's tax status depends entirely on the content of its speech is 'particularly repugnant to First Amendment principles.'"

But the appeals court's decision didn't sit well with the state attorney general, whose office filed a Petition for Review less than one week after the ruling had been issued.

"The Founding Fathers did not remotely intend for the First Amendment to prevent state and local governments from combating rape and other crimes by regulating the sale and consumption ofalcohol in certain adult establishments," the petition for certiorari, filed by Solicitor General James C. Ho, claimed. "They could not have fathomed that the Constitution would someday be used to establish a right to consume alcohol while watching live nude entertainment in public. Yet that is precisely what a majority of the court below did late last week, when it struck down a Texas law imposing a $5 per patron fee on nude dancing establishments that allow the consumption of alcohol on their premises."

Apparently, Mr. Ho is unfamiliar with the Constitution's Ninth Amendment, which states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

However, the cert petition takes the same tack that the attorney general took at the appeals court stage, framing the controversy as one of alcohol regulation rather than First Amendment rights. It also hearkens back to one of the U.S. Supreme Court's earliest "secondary effects" cases, Young v. American Mini Theatres, where the high court allowed state and local governments "a 'reasonable opportunity to experiment with solutions' to redress the negative secondary effects of adult businesses, including rape and other crimes."

Trouble is, Texas never introduced any evidence that its tax would reduce the alleged negative secondary effects, and, in any case, as Justice Anthony Kennedy's concurrence in City of Los Angeles v. Alameda Books officially cautioned, "a city may not regulate the secondary effects of speech by suppressing the speech itself"—and a tax on such protected expression can have no effect other than to suppress the dancers' erotic message. The respondents, whose case was effectively argued before the appeals court by Stewart Whitehead, representing the Texas Entertainment Association (TEA), hits on both of those points in its Response to the Petition for Cert.

According to former Harris County prosecutor David A. Furlow, upholding the sexually oriented business tax would open the door for the state to suppress any form of speech which offended it, under the well-known maxim, "The power to tax is the power to destroy."

"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," Furlow told the Houston Chronicle. "You start down a pathway that could lead to censorship-based government like that which exists in Iran."

But the fact that the state had presented no evidence that the strip club tax would have any effect on rape or other violence against women didn't trouble long-time anti-porn activist Robert Jensen, a journalism professor at the University of Texas. 

According to the Chronicle article, Jensen "acknowledged that it is difficult to prove a link between strip clubs and violence against women," but stated, "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."

Jensen had attempted to make a similar point in his promotion on several college campuses of Prof. Chyng Sun's 2007 highly partisan documentary, The Price of Pleasure.

The Texas Supreme Court will hear argument in the case of Susan Combs, et al v. Texas Entertainment Association, et al on March 25 at St. Mary's University in San Antonio.