Tuesday, June 9, 2009

Protection for nude dancing, deep in the heart of Texas …

Texas   Whenever I mention to students that some courts have held that “nude dancing” businesses receive some first amendment protection, I get back snickers and looks of disbelief.  I then quickly add that not everyone agrees with this conclusion.  Last Friday, however, a state appellate court held that a state tax of $5 per customer on “sexually oriented businesses” (with the humorous acronym of “SOB”) violates the First Amendment of the U.S. Constitution.  I also stress to students that courts in some states (New  Jersey comes to mind) tend to create more intrusive land use rules than do other states.  But this SOB ruling comes from the Court of Appeals of Texas.  The tax (imposed in 2007) is at Texas Business & Commercial Code § 47.052(a).  The ruling is Combs v. Texas Entertainment Ass’n, No. 03-08-00213-CV (Tex. Ct. App. June 5, 2009).   The Court of Appeals of Texas concluded that the tax was a “content-based” regulation of “expressive conduct,” which is treated as “speech.” This entitled the challenger to “strict scrutiny,” which the government conceded was a standard it couldn’t meet.

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