Taxing Lap Dances: A Risque Threat To Speech Everywhere

The U.S. Supreme Court is considering whether to take the case of 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from New York's highest court holding that the government may tax erotic dancing but not other forms of dancing.  

The government should not tax some forms of expressive conduct more than others.  The Supreme Court should take the case and reverse the New York court's decision.

The Supreme Court recognizes that nude dancing is "expressive conduct within the outer perimeters of the First Amendment."  And, the Supreme Court has held that "official scrutiny of the content of [speech] as the basis for imposing a tax is entirely incompatible" with the First Amendment.  Put these two rules together, and taxing authorities should not be able to discriminate between nude dancing and other forms of dancing.

The New York high court was sharply divided 4-3.  Although New York's tax scheme exempts "choreographic" and "dramatic or musical arts" performances, New York's tax authority decided to impose a tax on establishments where women perform private lap dances and pole dances.  The dissent said it was clear that dancing was exempted, and saw no constitutional distinction between "highbrow dance and lowbrow dance" because "a dance is a dance."  The dissent is right.  Such discrimination between expressive acts is not constitutional.

This issue is broader than just nude dancing.  Yesterday, Media Coalition, a conglomeration of media organizations, filed an amicus curiae brief encouraging the Supreme Court to take the case.  Media Coalition began its brief with the provocative question: "May a State impose a sales tax on tickets to the Broadway musical Mamma Mia, while exempting tickets to Rigoletto?”  That is a fancy way of saying: may the government tax speech based on its content -- whether that content is found in video games, the silver screen, books or a "gentleman's club"?  Nope ... not constitutional. 

This issue also is broader than just what happens in New York.  The Supreme Courts of Illinois, Utah and Texas also approve discriminatory taxes based on the content of speech, and a few other state legislatures are considering such laws.  A few weeks ago, Philadelphia decided to extend its "amusement tax" to lap dancing. 

Former Chief Justice John Marshall wrote nearly two hundred years ago that "the power to tax is the power to destroy."  Businesses featuring lap dances should not be unduly taxed for featuring their particular brand of free speech.  As the dissenters in New York's case found, it would not be constitutional to tax Hustler while leaving The New Yorker untaxed.  The bottom line is that taste and taxes do not mix.