Texas high court upholds ‘pole tax,’ lets down First Amendment

Tuesday, August 30, 2011

A recent Texas Supreme Court ruling upholding a controversial “pole tax” on adult businesses lacks a firm First Amendment foundation.

In 2007, the Legislature passed the Sexually Oriented Business Fee Act, which imposes a $5 charge for each customer entering a business that features nude dancing and serves alcohol. Both a trial court and an intermediate appellate court invalidated the law on First Amendment grounds.

These lower courts were on solid footing because the law is troubling. It singles out businesses that feature adult entertainment for a selective tax. In other words, the law appears to be a classic content-based law that must be justified by strict scrutiny, the most stringent level of judicial review.

However, the Texas high court in its Aug. 26 decision in Combs v. Texas Entertainment Association employed the secondary-effects doctrine to justify this selective tax. This doctrine arose with regard to the zoning of adult businesses. The idea is that government officials are not discriminating against adult businesses when they selectively zone them to be certain distances from residential areas, playgrounds or churches. That’s because the officials purportedly are not intending to suppress unpopular expression but to prevent harmful, secondary effects allegedly associated with adult businesses — such as increased crime and decreased property values.

The secondary-effects doctrine is troubling because it provides a blueprint for government officials to target unpopular expression.

The Texas Supreme Court decision is even more troubling, though, because it extends the secondary-effects doctrine from justifying a zoning law to justifying a tax law. At least with a zoning law, one could conceivably argue that it could reduce crime by prohibiting a red-light district of adult businesses. But how does imposing a $5 fee reduce any secondary effects? It doesn’t.

When the Texas Legislature discussed the measure, it didn’t focus on secondary effects. The Texas Supreme Court failed to acknowledge the obvious — the fee is simply a tax on unpopular speech.

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