Paul L. Caron

Thursday, March 23, 2023

Taxing Nudity: State 'Pole Taxes' Violate The First Amendment

Alexander Volokh (Emory; Google Scholar), Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny:

In recent years, states have passed “pole taxes,” i.e., taxes targeting nude dancing at adult entertainment establishments. Such taxes generally target establishments where alcohol is consumed, and the proceeds generally fund programs that benefit victims of sex crimes (or similar). Some of these taxes are “erotic-expression taxes” that specifically target sexual dance or other expressive conduct, while others are more general “nudity taxes” that are not defined by reference to expressive conduct.

State governments have defended such taxes against First Amendment attack on the theory that (1) such taxes combat negative secondary effects and (under Renton v. Playtime Theaters) should be analyzed under intermediate scrutiny as though they were content-neutral, and (2) such taxes survive intermediate scrutiny given sufficient evidence of the linkage between the establishments and the secondary effects.

I make two independent claims here. First, erotic-expression taxes are subject to strict scrutiny because they are content-discriminatory. The Renton exception has never been applied to taxes (as opposed to regulations). Nor should it be extended to taxes: on the contrary, a strict-scrutiny approach is more consistent with modern First Amendment caselaw.

Second, for both erotic-expression taxes and nudity taxes, regardless of the level of scrutiny, the government can pursue its legitimate goals equally well by raising the same amount of money from general revenues. Thus, these targeted taxes are not “narrowly tailored” even under the lower standard of intermediate scrutiny.

Both types of taxes are thus unconstitutional, regardless of the level of scrutiny, and regardless of the strength of the evidence against adult entertainment establishments.

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