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State Tax Notes

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St. Tax Notes



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The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commission and the August 2011 Texas decision in Combs v. Texas Entertainment Association, Inc.

It is virtually certain that there will be additional litigation along these lines in the years to come. More states and localities will consider and enact similar measures. Those efforts will be fueled in part by America's moral ambivalence about erotic entertainment and in part by governments’ never-ending quest for revenue in fiscally challenging times, and the states will be emboldened by the Bushco and Combs decisions. The adult entertainment industry can be counted on to challenge many or most of the enactments.

The first and second parts below describe Bushco and Combs, respectively. The third part generally describes relevant First Amendment doctrines. The fourth part applies those doctrines to Bushco and Combs and concludes that these cases were correctly decided under current law.


© 2011 Steve R. Johnson


First published in State Tax Notes.

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