Monday, November 23, 2009

First Amendment: Utah Supreme Court Upholds Tax On Strip Club, Strikes Tax On Escort Service

The Surpeme Court of Utah released an opinion last week upholding the constitutionality of a Utah statute that taxes businesses in which individuals perform services while nude or partially nude.  However, the court struck a Utah statute that taxed escort services as unconstitutional.  The decision in the case of Bushco, dba Babydolls Escorts, et al v. Utah State Tax Commission et al (No. 20070559) can be found here.  The court stated:
In 1994, the city of Erie, Pennsylvania passed an ordinance making public nudity a criminal offense. While the ordinance was a simple, generally applicable prohibition of public nudity on its face, it contained a preamble expressly acknowledging that the ordinance was adopted “for the purpose of limiting a recent increase in nude live entertainment within the City.” Additionally, Erie’s city attorney stated that the ordinance “was not intended to apply to ‘legitimate’ theater productions.”
When the ordinance was challenged by nude dancing clubs as an unconstitutional burden on their First Amendment right to engage in erotic nude dancing, the United States Supreme Court upheld the ordinance, concluding that its predominant purpose was to advance the city’s interest in limiting negative secondary effects--an interest unrelated to the substantive content of nude dancing expression.
The similarities between this case and Erie are substantial and important. Like the Erie ordinance, the Tax is both generally applicable and neutral as to message. Also like the Erie ordinance, the Tax was enacted, according to the record before us, with the predominant purpose of serving an important state interest unrelated to the substantive content of protected expression. The Tax is also similar to the ordinance in Erie in that it places only de minimis burdens on erotic nude dancing, a type of expression lying “only within the outer ambit of the First Amendment’s protection” and “of a wholly different, and
lesser, magnitude than the interest in untrammeled political debate.” The Tax is distinguishable from the ordinance upheld in Erie only in its form and in the fact that the Tax is, in all respects, less broad and less burdensome than the Erie ordinance.
We begin our analysis by evaluating the Tax’s content neutrality and then assess whether it passes constitutional muster under the appropriate level of scrutiny. We determine that it does. We next turn to the question of whether the Tax is unconstitutionally overbroad and determine that it is not. We finish by analyzing whether the statutory provisions applying the Tax to escort services are unconstitutionally vague and conclude that they are.
You can view the Supreme Court case referenced at the following link: Erie v. Pap's AM, 529 US 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000).

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