Barely Speaking

It’s nice to know that Tony Kushner can make it into the parsing of complex First Amendment jurisprudence. A lawyer dropped the playwright's name Thursday while arguing that nude dancing is a form of expression and that a state "pole tax" on strip clubs is a violation of free speech protections.

Near the close of the Texas Entertainment Association v. Combs hearing, it looked like the Texas Supreme Court was going to make it through oral arguments on the strip-club tax without a single squirm-inducing moment. Then Justice Dale Wainwright pressed Craig Enoch, counsel for the association, to explain just what kind of expression the legislation hindered.

“Dancing. Dancing is expressive. The act of dancing is expressive,” Enoch said.

But that wasn’t enough for Justice Don Willett, who pounced with a follow-up question. “What is being expressed? I don’t mean to be flip, but you say the dancing is the expressive activity,” he asked, “But what is the message conveyed? What is being expressed?”

Enoch, who speaks with a genial drawl, replied: “Eroticism. It’s seeking to create emotion. It’s seeking to create a reaction, not unlike Angels in America” — the Kushner play about the 1980s AIDS crisis.

Maybe that’s only enough to make a sixth grader squirm. But the hearing in the high-profile pole tax case didn’t get any racier than that, because despite what goes on in the establishments subjected to the fee and a certain alliterative nickname, the case turns on a decidedly un-erotic topic: the constitutionality of a $5-per-patron fee on businesses that serve alcohol while featuring nude dancing.

State Rep. Ellen Cohen, D-Houston, who attended the hearing, authored the bill in the 2007 legislative session. In her amicus brief on the case, she says the law — which directs the revenue to fund sexual assault prevention programs, legal aid for victims, and low-income health insurance — takes aim at the “dangerous combination of alcohol and live nude entertainment,” a situation that “indisputably creates an increased tendency for sexual violence.”

In 2008, after the bill passed, the entertainment association, which represents the adult entertainment industry, successfully challenged it in district court. The 3rd Court of Appeals ruled against the state's appeal, saying the tax violates the First Amendment because it applies solely to the content of certain speech (i.e., nude dancing).

The questions of whether the Legislature designed the law to raise funds to prevent sexual assault or to regulate adult entertainment — and whether the tax targets that activity or merely alcohol consumption in its presence — cut to the core of its constitutionality.

The state argues that the First Amendment doesn’t apply because no expressive conduct is involved — that the tax targets the consumption of alcohol where dancers are naked. The entertainment association says it places a burden on strip clubs based on the content of the speech that occurs there, a discrimination that requires the law to pass a “strict scrutiny” test under the First Amendment. That higher evidentiary burden requires a showing that the law is narrowly tailored to serve an important state interest.

Both the plaintiff and the state brought out the big guns — the entertainment association picked Enoch, a former Supreme Court justice who now heads Winstead’s Austin appellate practice, and the state called on Solicitor General James Ho for representation, a move that indicates its high priority within the attorney general’s office — and they got their money’s worth during a blitz of inquiries from eight of the nine justices (Phil Johnson kept mum) on the well-prepared court.

Justice Harriet O’Neill, who interrupted almost before Ho could utter a full sentence at the podium, and Justice David Medina, who jumped in soon after, played the most active roles in questioning the state’s position, which rested on an “if we can ban it, we can tax it” argument. If the state can completely prohibit alcohol consumption in adult entertainment establishments, they argued, it’s within the state’s power to tax it.

“It would frankly be, if anything, turning the First Amendment on its head to say that you could criminalize, but you can’t impose a more modest regulation,” Ho said. He later added: “The traditional principle of the ‘power to tax is the power to destroy’ has real purchase … but that’s not true here — we can ban this.”

When he appeared before the court, Enoch disagreed with that assertion. Referring to U.S. Supreme Court Justice Antonin Scalia’s opinion in a case that upheld a ban on public nudity, he said, “He’s just not convinced that there’s a message worth protecting, but that does tell you that if it’s the message that you are targeting, you cannot ban live nude entertainment.”

Court spokesman Osler McCarthy said that because the case was heard late in the term, it’s likely the court won’t issue a decision until next year. That timing of that could be significant if O’Neill, who isn't seeking re-election, is a swing vote.