DALLAS from www.courthousenews.com – – The U.S. Supreme Court refused a request from the state’s strip club industry to review whether Texas’ $5 cover charge violates free speech.
Texas’ Sexually Oriented Business Fee Act – or “pole” tax – became law in 2007 and was intended to fund sexual assault and low-income health insurance programs.
The all-Republican Texas Supreme Court unanimously ruled in August that the fee was constitutional, that the fee is too small to be a burden on free speech and that the state has a legitimate interest in fighting the secondary effects of violence associated with adult entertainment and alcohol.
Justice Nathan Hecht [pictured] wrote that the tax was not directed at the expression of nude dancing, but at the “secondary effects of nude dancing when alcohol is being consumed.” He suggested that businesses can “avoid the fee altogether simply by not allowing alcohol to be consumed.”
The Supreme Court rejected a petition to review the case last week without comment.
Former Texas Solicitor General James Ho told the Amarillo Globe-News the state Supreme Court’s “rapid rejection of the petition [for review] should surprise no one.”
“Over the past half century, the U.S. Supreme Court has repeatedly upheld laws far more restrictive than Texas law,” Ho said. “If those laws are constitutional, then so too is Texas law.”
Plaintiffs’ attorney Stewart Whitehead, of Austin, told the Globe-News in August that the fee was an illegal occupation tax under the state constitution and First Amendment, because it interferes with people’s freedom of expression. He said that avoiding the tax by not consuming alcohol is not an option because the strip clubs depend heavily on the sale of alcoholic beverages.
Justice Hecht wrote for the court: “A Texas statute requires a business that offers live nude entertainment and allows the consumption of alcohol on its premises to remit to the Comptroller a $5 fee for each customer admitted. We are asked to decide whether the statute violates the right to freedom of speech guaranteed by the First Amendment to the United States Constitution. We hold it does not. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.”