You may recall that in the last legislative session, a bill (HB1751) was passed that imposed a $5 per customer fee on strip clubs, with the revenue going to a sex assault prevention fund, among other things. That fee was ruled unconstitutional by a Travis County judge in March. Now everyone involved is back in court for the first round of appeals.
In arguments before the state Third Court of Appeals, Texas Solicitor General James Ho said the government should be allowed to collect the fee in part because it can already regulate nude dancing as well as sales of alcohol.
The law specifically applies to strip clubs that sell alcohol. By putting those two elements together, “a small and modest fee should be permissible,” said Ho, the top appeals attorney for state Attorney General Greg Abbott.
The fee is not a tax on constitutionally protected free speech, Ho said.
“Remove the alcohol, remove the fee,” he said.
The Texas Entertainment Association, which represents strip clubs across the state, strenuously disagreed.
“It is a tax on speech,” said the group’s lawyer, Craig Enoch, a former Texas Supreme Court justice. He said the fee is only charged at bars and clubs that have nude dancing.
“This is a tax that is assessed if you are entertaining in the nude,” Enoch said.
The state’s argument that the sale of alcohol is the key component would open other First Amendment issues, Enoch said.
“If this statute is not a tax on speech, the state could tax the Catholic church because it serves alcohol at communion,” Enoch said.
I thought the strip clubs’ argument was weak the first time around, but they prevailed, so who knows. The one thing that is certain is that this will be in the courts for a lot longer, which is making some proponents of the law consider other options.
Annette Burrhus-Clay, executive director of [the Texas Association Against Sexual Assault], said the group will work with lawmakers during the current legislative session to draft a new bill that protects free speech and provides a dedicated source of money.
I’ll keep an eye out for that. A statement from Rep. Ellen Cohen, the sponsor of HB1751, is beneath the fold.
I would like to extend my appreciation to the Attorney General’s Office for their continued efforts in this litigation. I believe now, more than ever, that funding sexual assault programs by placing a fee on these sexual oriented businesses is the most appropriate way to raise much needed funds.
In the end the focus must remain on the victim survivors and providing them with the resources they need. As a Legislator, I will continue to work with members of both parties to bring support to those who need it most. I am confident that my fellow Representatives will, as always, vote with their districts in mind and support the thousands of women, children and men who are survivors of sexual assault.”