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It has just been published in the Free Expression Law Journal, and is available here; Here is the summary:

In recent years, states have passed “pole taxes,” that is, taxes targeting naked dancing in adult entertainment establishments. These taxes generally target establishments where alcohol is consumed, and proceeds generally fund programs that benefit victims of sexual (or similar) crimes. Some of these taxes are “erotic expression taxes” that specifically target sexual dancing or other expressive behavior, while others are more general “nudity taxes” that are not defined with reference to expressive behavior.

State governments have defended such taxes against First Amendment attack on the theory that (1) such taxes combat negative secondary effects and (under City of Renton v. Playtime Theaters, Inc.) should be analyzed under intermediate scrutiny as if they were content-neutral, and (2) these taxes remain under intermediate scrutiny, with sufficient evidence of the link between facilities and secondary effects.

I make two independent claims here. First, taxes on sexual expression are subject to strict scrutiny because they are discriminatory in content. the Renton The framework has never been applied to taxes (unlike regulations). The matter should not extend to taxes: on the contrary, a strict scrutiny approach is more consistent with modern First Amendment case law.

Second, for both sexual expression taxes and nudity taxes, even if courts apply moderate scrutiny, these targeted taxes are constitutionally vulnerable. A number of potential government interests are impermissible because they are inherently oppressive or discriminatory; Some other interests are likely to be valid, but targeted taxes do not promote those interests any more than general taxes do. The concern to combat secondary influence can be valid, but only under strict conditions that are often not met in practice.

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