Paul Watler's Podcast: The "Pole Tax" and the First Amendment

Paul Watler's Podcast: The "Pole Tax" and the First Amendment

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Does a Texan have a First Amendment right to sip a beer while watching a topless dancer? Can the state constitutionally levy a tax on nude dancing clubs to fund programs to prevent sexual assault?

That is the constitutional thicket that the Texas Supreme Court recently waded into. On March 25th at St. Mary’s Law School in San Antonio, the Court heard oral argument in Combs v. Texas Entertainment Association – the so called “pole tax” case.

According to the 2009 opinion by the Austin Court of Opinions, in 2007, the Legislature enacted Chapter 47, subchapter B, of the Texas Business and Commerce Code. The bill imposed a fee of $5 per patron for businesses that offer live nude entertainment while selling or allowing consumption of alcoholic beverages. An organization of adult entertainment clubs challenged the statute on first amendment grounds. In 2008, a Travis County district court agreed with the clubs that the fee was unconstitutional and the Austin Court of Appeals affirmed the trial court last year.

The pole tax case tests the outer limits of free speech under the Constitution. It has long been the prevailing view of the U.S. Supreme Court and leading legal scholars that the core purpose of the First Amendment is to protect political speech. Robust public debate on the questions of the day receives full constitutional protection.

But it is not just political speech that the First Amendment protects. The pole tax case illustrates that, today, courts continue to work out the boundaries or margins of that protection.

Other than the titillation factor, why should we care about this nude dancing case? After all, only a relative handful of Texans patronize these establishments. No self-respecting parent would want their daughter working there. Why should the state not have the power to tax this disfavored segment of the economy, especially for a public good such as a program to prevent sexual assault?

The answer may, in fact, lie within the core of the First Amendment. Central to the First Amendment’s guarantee of free speech is the idea that government may not censor speech. The power to censor is the power of the government to choose whether some messages are “good” or “bad.” The brilliance of the First Amendment is that it assigns the power to judge the value of speech, not to legislatures or courts, but to the marketplace of ideas. In our democracy, there is no role for government at any level to approve or disapprove speech based on its content.

According to the Supreme Court brief of the adult entertainment plaintiffs, the fundamental problem with the pole tax is that it applies to certain expressive activity precisely because of the content of the expression. Nude dancing is singled out for taxation while mainstream live theater escapes. The vast majority of citizens may agree with this preference. The Legislature picked an easy target. Strippers and their employers have little influence in the halls of the legislature. But protecting free speech is not about pleasing the majority. The First Amendment is about protecting minority views. Protecting the disfavored, the marginal or the fringe from the value judgments of the state is a core purpose of the First Amendment.

Although the Legislature cannot tax expressive activity on the basis of the content of the expression, it certainly can reasonably regulate the time, place and manner of the speech. If representatives in Austin find that strip clubs in fact need further regulation, the First Amendment does not stand in their way. But a tax is not a regulation.

The plaintiffs’ brief points out that granting power to the state to selectively tax a small group of speakers is ripe for abuse. Departing from our hard-earned First Amendment heritage when the target group is erotic dancers and patrons is but a short step from more pernicious intrusions by the government. Even though most Texans have no great fondness for topless joints, we do cherish the liberty we are guaranteed under our constitutional framework.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer. An archive of previous First Amendment podcasts can be found here.