Texas “Pole Tax” Declared Unconstitutional

April 2, 2008

An excellent court decision out of Texas last week struck down the ridiculous “pole tax”—a $5 government-imposed charge to be admitted into strip clubs. The tax was enacted earlier this year, with the stated purpose of using the $44 million it would raise to pay for sexual assault support services and health insurance for low-income Texans.

The case, Texas Entertainment Association Inc. v. Combs, decided March 28 by Travis County District Judge Scott Jenkins, violated the First Amendment and did not effectively advance an interest that would justify the free speech violation. While the judge held that while the state presented some persuasive evidence that strip clubs and sexual assaults have some connection, “[t]here is no evidence that combining alcohol with nude erotic dancing causes dancers to be uninsured, that any dancer is in fact uninsured, or that any uninsured dancer could qualify for assistance from the fund.”

Because entering strip clubs is protected First Amendment activity, the state had to demonstrate that its restriction of that right was “narrowly tailored” to achieve a “compelling governmental interest.” The law failed in this regard also: “[N]o evidence was presented to show that the amount of the tax is related in any way to the degree to which the taxed business activity contributes to the alleged secondary effects or to the financial cost of that contribution.”

Unlike most tax cases, where judges simply sustain the law because there’s some plausibly good reason justifying the law that legislators might have considered, whether they did or not, Judge Jenkins noted that legislators had not considered any evidence of a link between a tax on strip club entrance and health insurance or sexual assault prevention.

The judge’s analysis resembles ours. This law is another example of legislators, to use the judge’s words, “singling out business activity involving expression that, while politically unpopular,” is still legal. The tax code shouldn’t be a substitute for the criminal code. Few would object to preventing sexual assaults, but I would hope society would want to fund that program generally, and not with a punitive tax on some random disfavored activity.


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