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.

Comments

[ReaderY]

While it’s true that the Renton framework has never been applied to taxes, it’s true only in the way that it’s true that no court has ever applied the rule against unprovoked police shooting of bystanders to a police officer who shot somebody using, say, his left hand rather than his right.

It’s pretty obvious that if you can prohibit something, you can take the lesser step of permit it but tax it. It’s an intermediate policy that’s been applied to numerous issues where government wants to discourage something but doesn’t outright prohibit it.

The Supreme Court held that that the state can prohibit nude dancing as commercial entertainment. And since it can be prohibited, it’s outside the scope of the First Amendment, and government can use any standard intermediate approach to dealing with it that it wants – taxes, restrictive zoning, whatever. The power to take the greater step includes the power to take the lesser.

[Sasha Volokh]

Hi, I don't think that's quite right, for two reasons.

1. I point out several ways that taxation is different from zoning and land-use regulation. See Part II.C.2 at 657–64, but especially the discussion at 661–64 (beginning with "It makes sense that the secondary-effects doctrine applies to regulation and licensing—but not taxation—for several reasons, beyond just respect for and deference to local governments’ zoning and land use decisions.").

2. I also point out that the "greater power includes the lesser" argument doesn't generally apply, and in particular doesn't apply here. See Part III.C ("The 'Greater Power Includes the Lesser' Paradox") at 686–87.

[Dilan Esper]

Pole taxes joins erogenous zoning in the lexicon of bad adult business related puns in constitutional law.

Sasha is obviously concerned about the stripping of people's rights here.

[Paladin_44]

Now that's funny...

[Ridgeway]

I was hoping for more on the double-d taxation aspect of this, as most strippers have to pay a separate pole tax to the venue proprietor.

[MatthewSlyfield]

People should stop sucking on the teat of government.

[Rev. Arthur L. Kirkland]

The discussions concerning West Virginia, Israel, and churches are to be found elsewhere.

[ReaderY]

Yeah, it’s getting hard just trying to keep abreast of the situation.

[John F. Carr]

Is there any precedent on the constitutionality of discriminatory user fees? I think these taxes fall outside the traditional definition of user fees. One can imagine an expensive-to-administer program of inspections, for example, paid for by the inspected businesses.

[ReaderY]

It’s like taxing alcohol or cigarettes. Sticklers for propriety are really into syntax.

[DWB]

HAWT

[jdgalt1]

It is morally illegitimate, and should be banned, for government to tax all the consumers of a particular product or service just because a few misuse it. That would be like taxing all car owners to pay for the damage inflicted by drunk drivers. The innocent majority of the consumers are simply not causing the problem and so are entitled not to pay for it.

[The Margrave of Azilia]

The tax collectors in the audience shout "take it off" the loudest.

[ReaderY]

I’m going to make what I acknowledge to be a policy argument. But this once I’ll make what others might call a “structural constitutional” argument.

The hope, the aspiration, of the concept of democratic government in a pluralistic (indeed divided) society is that the people and their representatives will be able to hash things out and work something out when they disagree that permits them to live together in peace, with and despite their disagreements.

Compromises are vital to this project. Compromise is not the only way people can peacefully resolve their differences. But it is a very common and highly important way.

For this reason, constitutional doctrine and judicial decision-making should aim to err on the side of permitting people to compromise their differences rather than force them into an unnecessary and potentially socially damaging conflict.

Permitting but taxing something that a substantial proportion of the population would like to prohibit outright is a traditional tool of social compromise, a solution that American governments have applied to a variety of divisive social issues.

For “structural constitutional” reasons, courts should err on the side of avoiding creating a situation where government can either permit or prohibit something entirely, a solution where one side wins outright, yet is not allowed to enact compromise intermediate solutions where neither side wins completely. By eliminating compromise as a possible outcome, such a situation undermines the core ability of democratic governments in divided societies to hash out ways to enable people to live together while keeping the peace. It detracts from the ability of the people to govern itself. Keeping the peace has to be the first goal of government. Avoiding civil war is more important than instituting one side’s view of an ideally just society. Only with a little domestic tranquility does it become possible to think about either the general welfare, or the blessings of liberty.

[MatthewSlyfield]

An interesting take.

However, I would suggest that there are some things that ought to be beyond the authority of government and therefore should not be subject to political/democratic compromise.