Congress Shall Pass No Law Abridging the Freedom of the Strip

Matt Welch | April 15, 2005

The Nevada legislature has introduced a bill slapping a 10 percent tax on strip club dancing. The ACLU is fighting back.

"You can not have a special tax aimed at First Amendment activity based on content," said Allen Lichtenstein, general counsel of the ACLU of Nevada.

Link via Baseball Primer.

Comments

|4.15.05 @ 12:51PM|#

Advice to the legislature: if you find stripping that offensive, maybe you shouldn't live in a state whose best-known metropolis goes by the nickname "Sin City."

MP|4.15.05 @ 1:13PM|#

I still don't understand the "strip club" = "artistic expression" = "free speech" argument. Artistic expression? C'mon... I'm glad that the precedent exists, but my original meaning views don't allow me to accept that it is constitutionally protected speech. Does any know the SCOTUS decision that established this?

|4.15.05 @ 1:17PM|#

I suspect that they're taxing it because they want to cash in on the revenue, not because they want to restrict stripping. Sort of like how tourist-city politicians are always (stupidly) trying to raise taxes on hotels and restaurants. If they were concerned with being puritanical, they'd probably start by banning prostitution throughout the state. Then again, with state legislators you never know.

tomwright|4.15.05 @ 1:21PM|#

Great. Now OSHA will get into the act.

You just KNOW they will find a problem with all the dimes patrons will be throwing a the dancers along with the dollars. A dancer could slip on them or something.

Tom

|4.15.05 @ 1:38PM|#

Who would the tax apply to, the dancers or the clubs?

|4.15.05 @ 2:01PM|#

MP:
Here's a quick intro to the relevant jurisprudence: http://www.firstamendmentcenter.org/speech/adultent/topic.aspx?topic=nude_dancing

The Wine Commonsewer|4.15.05 @ 2:01PM|#

Too bad the ACLU doesn't give a shit about any other special tax, license, or fee based upon content. Machine shops pay license fees to cities at an entirely different rate than grocery stores so where's the frikkin' beef?

Besides, contrary to court interpretation, normal cognative dissonance precludes anyone from buying that stripping and dancing is "speech"--which is why the term always shows up in quotes when associated with hot chicks and lap dancing or any other form of "protected speech" that involves naked women.

And if stripping for money is protected speech than why isn't humping for money proetected speech?

What a bunch of hypocrites, both sides.

Mandatory Disclaimer:

I'm a libertarian, ergo I'm in favor of strip clubs doing whatever the hell they want without interference from government. Just spare me the sanctimonious bullshit from the ACLU whose selective and self-serving outrage makes me want to puke.

The Wine Commonsewer|4.15.05 @ 2:04PM|#

Interesting that even on TAX DAY that we don't hear a peep out of the ACLU about being forced by government to disclose every private bit of information about our families and our finances in clear violation of several amendments without the benefit of court order or probable cause.

By April 15 I am pretty cranky. Sorry.

|4.15.05 @ 2:07PM|#

Wine Commonsewer,

First, have you tried the 2001 Columbia Crest Merlot that's on the shelves now? Now THAT'S what a $12 bottle should taste like!

Second, there's an obvious answer to this: "Too bad the ACLU doesn't give a shit about any other special tax, license, or fee based upon content. Machine shops pay license fees to cities at an entirely different rate than grocery stores so where's the frikkin' beef?"

ie, speech is singled out for special protection in the Constitution, while metal fabrication is not.

Third, some naked women stuff is clearly expressive speech. "Hair," for example.

MP|4.15.05 @ 2:14PM|#

Thanks Julian...fun weekend reading.

|4.15.05 @ 3:29PM|#

Humping for money is protected speech -- that's where all of those yummy porn films come from.

|4.15.05 @ 4:13PM|#

ie, speech is singled out for special protection in the Constitution, while metal fabrication is not.

Perhaps you can explain why stripping is "speech" (which, by the way, I believe to be true) and metal fabrication is not.

The Wine Commonsewer|4.15.05 @ 4:13PM|#

I'm grumpy and my comments were not directed at anyone, particularly Matt, except the ACLU.

Joe, I have had Columbia Crest Merlot in the past and sometimes it's quite good. Haven't had this particular vintage, however. Thanks for the tip.

There are many things that are specifically singled out for protection by the constitution, including some forms of speech. One could argue that some of them have more intrinsic value than lap dancing. Why ignore them?

My point was that it is silly to say that nude dancing is speech when really it is dancing and the only reason it is defined as speech is because they couldn't figure out another way to approach it.

I also say that financial records constitute speech and should be protected under the first amendment. Is that a strectch? Well, yes. But no more of a stretch than calling dancing "speech".

BP, interesting point. Humping for money on film is protected speech but humping in a hotel room with a john from the boulevard is not. That's just sex.

|4.15.05 @ 4:31PM|#

Stripping is speech because of the following chain of associations:

- Art is a form of speech
- Dancing is a form of art
- Stripping is a form of dancing.
- Ergo stripping is a form of speech.

The arguable point is whether art is speech. But there's a long chain of court rulings that it is, so that's basically settled.

|4.15.05 @ 4:49PM|#

Couldn't one argue that metal fabrication is a form of art?

|4.15.05 @ 4:58PM|#

"Perhaps you can explain why stripping is "speech" (which, by the way, I believe to be true) and metal fabrication is not."

I'm not really sure. Maybe because the difference between a stripper's performance and an actual musical/dance theatrical porformance that features nudity is difficult to draw in objective terms? It seems like stripping got roped in when the laws against any kind of public nudity, including as part of an art performance, were invalidaded.

Xrlq|4.15.05 @ 5:35PM|#

The timing of this story is a bit odd, seeing as the Nevada Legislature recently declined to tax brothels, despite the fact that the brothel owners actually supported the tax.

|4.15.05 @ 5:38PM|#

As a Nevadan, I don't mind this tax, for the following reasons:

1) I don't patronize Nevada strip clubs (or brothels either, to forestall the obvious follow-up question);

2) I'd rather have the legislature raise revenue via a consumption-based tax such as this one rather than by a regressive income tax. Nevada has no state income tax, and I'd like to keep it that way;

3) The majority of Nevada strip club patrons, particularly in the Las Vegas area, are tourists rather than locals, and I'm perfectly happy to have them fund state activities. The locals that do go to the clubs rarely do so more than once a month, which means that their tax rate isn't raised all that much.

Notice how the legislature didn't try to raise taxes on the brothel industry - they have a lot more political clout than the strippers!

|4.15.05 @ 5:39PM|#

Fair enough joe, Perhaps you can explain why ....an actual musical/dance theatrical porformance(sic) that features nudity... is "speech" and metal fabrication is not.

In other words you did not really answer TWC's complaint about the ACLU's selective concern.

|4.15.05 @ 5:46PM|#

That post was more confrontational than I intended.

I should have said "are you really sure the distinction is so clearcut?

|4.15.05 @ 5:53PM|#

I'd address the "stripping is speech" argument from a different angle. In short, I see public displays of sexuality (including nudity, stripping and porn) to include an inherent protest against outdated sexual mores. It's impossible to engage in this behavior without openly and directly challenging standing legal and traditional ideas.

So that said, we don't have to protect sexual expression under a definition of "art" for it to be speech. It's speech because it's a conscious challenge to current attitudes and policies.

|4.15.05 @ 5:53PM|#

10 percent tax on strip club dancing

Does this mean that for every 10 lap dances performed by a stripper, one of them will have to be given to a public employee?

I could see tax collectors lining up for that duty. Some stripper does 9 dances, and then a guy from Nevada's version of the IRS has to come in.

The Wine Commonsewer|4.15.05 @ 6:16PM|#

Czar, LOL, those outdated mores have been outdated for at least 30 years. The protest is over, we won a long time ago (But, you still have to have a password to get to the Dark Side of my website).

Tho-Row, that was great.

Mark, you have effectively outlined every city's argument for entertainment taxes.

Dan, you are correct the legal issue is settled. But as we all know that is sometimes meaningless. Case in point would be the settled law of Plessey v Ferguson. And certainly from a moral standpoint settled law is often meaningless.

I think the moral issue is the libertarian one, it isn't any of the government's business what consenting adults do. We shouldn't have to pretend it's art to justify it. We ought to be able to call it what it is and say 'too bad if you don't like it' rather than hanging our hats on some exceptionally subjective and creative interpretation of the 1st Amendment, particularly since most people are, at best, winking and nodding, and at worst are saying 'give me a frikkin' break'.

|4.15.05 @ 8:08PM|#

Couldn't one argue that metal fabrication is a form of art?

One could argue that celery is a mammal, were one so inclined.

But if you're asking "could one successfully argue that metal fabrication is a form of art", my answer would be "I doubt it, but I'd enjoy watching you try". There is no "presumption of art" in US Law, so far as I'm aware; if you want to establish that an activity is artistic, you need to provide evidence for it. Dancing has been considered art for millennia; metal fabrication hasn't.

But in any case, you're missing the point. The ACLU isn't arguing that the state cannot tax dancing. It is arguing that it cannot tax *some* kinds of dancing based solely on the content of the dance. So your complaint that metal fabrication gets taxed isn't really relevant.

|4.15.05 @ 9:27PM|#

Metal fabrication has been art for millenia. It's just that some people don't think that jig grinding is on the same par with the Statue of liberty. Others don't think pole dancing is quite on a par with ballet.

|4.15.05 @ 11:54PM|#

if striping is taxable than strip searching would also be taxable. when are they going to tax sex?

Stripping is starting to reach the level of smoking without the cancer.

|4.16.05 @ 11:24AM|#

This is just the government trying to single out a narrow group of people for a tax increase. This kind of thing usually works because the tax increase won't affect the majority. The problem is we all belong to a narrow little group somehow. If we tolerate this, sooner or later we will all be at the receiving end of some special tax.

|4.16.05 @ 5:23PM|#

The arts-snobblers in my town have been trying to convince we hoi polloi since 1982 that this piece of ironmongery is art: Mark di Suvero's The Calling.

Locals mostly call it something else, and use the word "puckered" in the same sentence quite a lot.

The beautiful addition to the Milwaukee Art Museum in the background just makes the "Orange Asterisk" look even uglier than it did when di Suvero's little joke on the good burghers of the city was set against green parkland, the blue of Lake Michigan, and the changeable sky. In winter, against a background of grey and white, the thing looked like a metastasized traffic barrier.

Kevin

|4.16.05 @ 6:23PM|#

Metal fabrication has been art for millenia.

No, it hasn't. *Some* forms of metal fabrication have been considered art (e.g., goldsmithing), but most aren't. You won't find anybody who thinks of the manufacture of ball bearings and wire as a form of artistic expression, for example.

|4.19.05 @ 9:09AM|#

Isaac, the difference between staging "Hair" and operating a shop that stamps out hubcaps is very clearcut - one is clearly expressive, and the other clearly is not.

Stripping, it seems, just slips in under the wire as qualifying as an artistic producation.

Czar, " see public displays of sexuality (including nudity, stripping and porn) to include an inherent protest against outdated sexual mores." Really? In Vegas? Would there be some point at which those sexual mores become so obsolete, that stripping ceases to be a protest against them, and then loses its expressive value?

|4.19.05 @ 4:15PM|#

Joe:

Some hubcaps ARE works of art. Others aren't. So why treat hubcaps differently? As many in the arts community keep trying to convince the rest of us, art is everywhere.



I don't care for the dance = speech equation. I'd much rather the argument were rooted in the 9th Amendment (you know, the one that was forgotten seconds after ratification). The 9th says "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." One could argue that based on the rights of speech, press, and assembly that ARE enumerated, an reasonable application of the 9th Amendment prevents the government from forbidding other arts, including dancing nude before an audience of self-selected patrons.

But unfortunately, the 9th has a cloaking device attached to it. Somehow, only libertarians seems to be able to negate the cloak. :(