I bet it's not often that "no interest" is used in connection with adult entertainment. But that's a key phrase in a Texas Court of Appeals ruling last week that upheld a lower court's finding that the state's so-called "pole tax" is unconstitutional.
Texas officials today said they are appealing the ruling that the $5-per-customer admission tax on certain sexually-oriented businesses violates the First Amendment.
The Associated Press reports that lawyers for Texas Attorney General Greg Abbott and Comptroller Susan Combs have asked the Texas Supreme Court to overturn the ruling invalidating the tax.
The appellate court ruling that struck down the 2-year-old law held that the tax was a content-based tax that the Texas Comptroller failed to show was necessary to serve a compelling state interest.
At issue was the fact that the tax was not imposed in all incidents where live nude entertainment occurred in the presence of alcohol, but only in those situations in which the Comptroller "determined that the essence of the performance or transaction was live nude entertainment."
It's sort of a variation on the old, "I know it when I see it" standard.
For instance, a play involving nudity did not trigger the tax. For theater lovers, that meant that, had the law stood, the touring company of the Tony award winning production of Hair could have come to Texas without worrying about the cast being arrested while performing their au natural scene on stage.
This type of differential taxation based on content, said the court, warranted strict scrutiny. The court rejected the Comptroller's characterization of the tax as an alcohol regulation rather than a tax on speech.
The owner of a sexually-oriented business could avoid the tax by choosing not to allow the consumption of alcohol on the premises. But the court said that work-around of the tax was insufficient to transform a content-based tax into a content-neutral alcohol regulation.
The money collected from the "pole tax," so dubbed because strip clubs were a prime target, was supposed to pay for programs to aid sexual assault victims. Many clubs, however, reportedly ignored the fee. Still, more than $12 million has been collected and remains in an account pending the tax's final legal status.
Lusty Lady sign photo by Chas Redmond