Texas 'stripper tax' is constitutional, high court rules

Steve Korris Aug. 29, 2011, 1:30pm

AUSTIN – The $5 cover charge at Texas nude bars is constitutional, the state Supreme Court ruled on Aug. 26.

The justices reversed appellate judges in Austin who found the fee violated free speech rights under the U. S. Constitution.

Justice Nathan Hecht found the mixture of nudity and alcohol too dangerous to protect.

"The fee is not a tax on unpopular speech but a restriction on combining nude dancing, which unquestionably has secondary effects, with the aggravating influence of alcohol consumption," he wrote.

"An adult entertainment business can avoid the fee altogether simply by not allowing alcohol to be consumed."

He wrote that 169 bars in Texas offer drinks and nude entertainment.

Legislators imposed what became known as the "stripper tax" or the "pole tax" in 2007, to provide $25 million a year for a sexual assault program and devoting any surplus to health benefits for low-income residents.

Legislators provided that owners didn't have to collect $5 at the door, as long as they paid the state at that rate.

Texas Entertainment Association sued for relief in Travis County in 2008, claiming the fee was an unconstitutional tax, and District Judge Scott Jenkins granted it.

He declared the fee a content-based tax on expression and found it didn't serve a compelling state interest.

Appellate judges affirmed him two to one, deploring the fee as selective taxation "particularly repugnant to First Amendment principles."

At the Supreme Court, the association argued that the fee didn't reduce secondary effects associated with sexual abuse.

But Hecht wrote "logic and the evidence indicate that the fee provides some discouragement to combining nude dancing with alcohol consumption."

Legislators could reasonably infer that the alternative of venues without alcohol was sufficient to prevent suppression of expression in nude dancing, he wrote.

No one dissented.

Attorney General Greg Abbott defended the fee on behalf of comptroller Susan Combs.

Clarence Weber, David Morales, James Ho, Danica Milos, James Todd, Christine Monzingo and Peter Hansen worked on the case for Abbott.

George Whitehead, Craig Enoch, Elliot Clark, Douglas Becker, Toni Hunter and Kelly Winship represented the entertainment association

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