My new article, Nudity Taxation: Discriminatory Taxation, Secondary Effects, and Levels of ScrutinyIt was published in Freedom of Expression Law Journal. It’s based on my work with Georgia Association of Club Executives v. Riley Case, where we challenged Georgia’s tax on adult entertainment establishments on First Amendment/free speech grounds. I am delighted to be included in the legal team Gary Fred And people in Fred Grant LLC; I He argued the case In the Supreme Court of Georgia in 2021, and after the court He was detained pending investigation for procedural reasonsI have argued the case in the Georgia District Court in 2022. (More appeals likely to come.)
I will be blogging the article serially over the next few days; Today I will give you the summary and introduction. (Obviously the article contains a lot of footnotes –Go to the article itself If you want to see those.)
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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.
Two lines of First Amendment precedent are on a collision course.
First, the Supreme Court has long held that the government cannot discriminate against a particular expression because of its content. For example, City ordinance cannot prohibit Sit-ins near the school, except for work-related sit-ins. This does not mean that such “content-discriminatory” (or, equivalently, “content-based”) laws are necessarily invalid; But they are subject to the familiar “Strict scrutiny” Standard – that is, they must be supported by a compelling government interest and must be “narrowly tailored,” meaning that the means the government chooses to achieve its interest must be the least restrictive (or least content-discriminatory) alternative. As we all know, many laws cannot stand up to this standard.
How do we determine whether a law is discriminatory in content? We look at whether content discrimination exists on the face of the law. But what if the law is discriminatory in content on its face, but is motivated by a content-neutral purpose, such as promoting traffic safety or avoiding disruption to school or Encouraging emerging publishers? Irrelevant: Content-neutral purposes cannot save a law that is content-discriminatory on its face from having to face strict scrutiny. This is not a new development. But the Supreme Court recently forcefully reaffirmed these principles, in Reed v. Town of Gilbert And Barr v. American Policy Consulting Association, Inc (Asia Pacific).
But at the same time, the Supreme Court has also ruled that justifications are sometimes content-neutral Can Save a discriminatory law in content.
What if a city decided to zone specific establishments with a certain type of content—for example, theaters showing adult films—to a particular area of the city, on the theory that such theaters attract transients and criminals and lower surrounding property values? This type of zoning ordinance would be discriminatory on its face in terms of content (it would only apply to theaters if they showed adult films), but it might be supported by various content-neutral justifications—what case law has come to call “secondary effects.” “
In the context of this adult zoning – in Young v. American Mini Theaters, Inc. And City of Renton v. Playtime Theaters, Inc.— The Supreme Court held that a law that is discriminatory in content, if justified by reference to the need to combat secondary effects, can be treated as if it were content-neutral. This move allows courts to evaluate the law under the more permissive standard of “intermediate scrutiny.” Under this standard, the court will generally defer to the government’s empirical evidence on secondary effects, and the law will likely survive constitutional challenge. Since those early cases, this principle has been applied outside the context of adult zoning, and has emerged in contexts far from adult entertainment and outside the narrow framework of zoning.
These two branches of doctrine seem to be in tension with each other. Can content-neutral justifications save an apparently discriminatory content law from strict scrutiny, or cannot they? How can we reconcile these two threads?
Easy: We can’t. Many lower courts They recognized that at least some of their prior case law – in some cases, including some case law relating to adult entertainment – had to be reconsidered in light of recent cases such as cane. Other courts have assumed Which RentonAlthough it may be a relic of an older view, it is still the law, and the doctrine of secondary effects remains valid unless overturned by the Supreme Court. Lawyers must do their own Westlaw searches, but at least in some places, it is perhaps wise to assume that the secondary effects doctrine, in practice, remains an exception to the usual rule. (But because the scope of the secondary effects doctrine seems broader and narrower than adult entertainment, the contours of this exception are not entirely clear.) To date, the Supreme Court has not found it appropriate to resolve this tension.
I am not taking a position here on whether the doctrine of secondary effects should hold or not. But as long as we have such a principle, we must determine how far it will extend. This question has renewed importance, thanks to the current trend of taxes targeting adult entertainment. These taxes, which I discuss in Part I, have been adopted in Texas, Georgia, Utah, and Illinois; There has been such a tax for some years in Tennessee; A bill along these lines has been introduced in California; The idea has been discussed in Pennsylvania. Some of these taxes are taxes on provocative expression, some are taxes on nudity; All appear to primarily target strip clubs, based on the belief that strip clubs contribute to child sex trafficking, sexual crimes, or related social ills; The proceeds from these taxes are often allocated to a fund to combat any of these problems identified by the government. Colloquially, these taxes on adult entertainment establishments have been called “Pole taxes“”Skin taxes“,” or “Reveal the charges“.
These taxes look like traditional sin taxes, such as those that would be levied on alcohol or tobacco, but alcohol and tobacco taxes, which do not affect speech, do not raise First Amendment concerns. Erotic dancing is another matter. Should such taxes be evaluated under strict scrutiny, on the theory that they are (at least in the case of taxes on sexual expression) content-discriminatory on their face, and any content-neutral justifications are irrelevant? Or should it be assessed under the more respectable intermediate auditing standard under which it applies? Renton When is law driven by content-neutral secondary effects?
In this article, I will make two independent arguments.
First, in Part II, I argue that taxes on sexual expression are in fact discriminatory in content and should be evaluated under strict scrutiny.
Second, in Part Three, I argue that taxes on sexual expression should fail strict scrutiny because there is always a less discriminatory option: the government can fight the relevant secondary effect by using general revenues (whether or not it uses a dedicated fund for that purpose). ). This is true even if Renton Case law regarding secondary effects remains valid in light of cane: Taxes simply do not fall within scope Renton. The Supreme Court has always applied Renton In the context of regulation, especially zoning and local land use, it has never been used Renton To assess taxes.
I also claim that even if one evaluates these taxes under moderate scrutiny—for example, if one takes into account nudity taxes (which are not discriminatory on content), or if one is not convinced by my first argument about taxes on sexual expression—they They will do it. It would still be constitutionally vulnerable.
The reason is similar: under moderate scrutiny, when a government burdens freedom of expression, the burden must be “narrowly tailored” to fit some compelling government interest. Tight tailoring under average scrutiny does not require the least discriminating option, but the government still needs to demonstrate that its chosen means “promotes A significant government interest could be achieved less effectively in its absence [burden]“In other words, government action cannot”This constitutes a burden far greater than necessary to advance the legitimate interests of the government“.
The possibility of neutral financing is also relevant here, because money is money; The government can equally counteract the secondary effect by raising an equal amount of money from general revenues. Under average scrutiny, we need to evaluate various possible governmental interests beyond simply raising revenue, but I conclude that a number of plausible governmental interests are either completely impermissible or likely to fail by narrow design. The governmental interest in combating secondary influence is the governmental interest most likely to support the tax, but even then, a number of strict conditions must be met before the tax becomes constitutional.
I conclude that even if we accept the continued validity of the secondary effects doctrine—even if the Supreme Court ends up reaffirming the doctrine as an exception to a discriminatory approach that would otherwise apply—taxes of sexual expression or nudity are still potentially unconstitutional. This is not an argument for changing the current black letter law: my reasoning only directly contradicts the holdings Two cases Supreme Courts.