Journal of Free Speech Law: "Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny," by Prof. Alexander Volokh (Emory)

(That's Sasha Volokh, who occasionally blogs here.)

Just published in the Journal of Free Speech Law, and available here; here's the Abstract:

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 City of Renton v. Playtime Theatres, Inc.) should be analyzed under intermediate scrutiny as though they were content-neutral, and (2) such taxes survive intermediate scrutiny, given sufficient evidence of the link 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 framework 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, even if courts apply intermediate scrutiny, these targeted taxes are constitutionally vulnerable. A number of possible governmental interests are impermissible because they are themselves speech-suppressive or discriminatory; some other interests are potentially valid, but the targeted taxes do not further those interests more than general taxes. The interest in fighting a secondary effect can be valid, but only under stringent conditions that are often not met in practice.