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Texas Pole Tax Upheld

This is only marginally on topic, but interesting.  Texas has an entrance fee of $5 for strip joints that serve alcohol.  This has been humorously dubbed the "pole tax."  Cf. U.S. Const. Amdt. XXIV.  The Texas Supreme Court today upheld the pole tax against First Amendment challenge, reports Jim Vertuno of AP.
The fee has been imposed on clubs that allow nude dancing and serve alcohol since 2007 to raise money for sexual assault prevention programs and health care for the uninsured.

The all-Republican Supreme Court, which ruled unanimously, said the fee is too small to be considered a burden on free expression, and the state has a legitimate interest in trying to curb the secondary effects of potential violence associated with adult entertainment and alcohol.

To avoid paying the fee, strip clubs could simply not serve alcohol, Justice Nathan Hecht wrote for the court.

"Remove the alcohol, avoid the fee. Today's ruling is a big win for victims of sexual assault," said attorney James Ho, former Texas solicitor general who argued the case for the state attorney general's office and is now in private practice.

Stewart Whitehead, attorney for the Texas Entertainment Association, said the strip club group may appeal to the U.S. Supreme Court on the free speech issue, or go back to the trial court to challenge the fee as an improper occupations tax under the Texas Constitution.

Texas requires 25 percent of an occupations tax to go to public education, which does not happen with the strip club fee, Whitehead said.

Oh, be careful what you ask for, Mr. Whitehead.  They can just raise the fee to $6.67 and give the extra $1.67 to education.

Getting rid of the alcohol is also problematic.  The gratuity income of the ...ahem... artists would be substantially reduced if the patrons were not three sheets to the wind.

The Texas court picks its way through the no-majority-opinion case of City of Erie v. Pap's A.M., 529 U.S. 277 (2000) and the no-majority-opinion case of City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).  (Don't you just hate those?)  It decides the fee is not "content based" and therefore the relatively lax standard of United States v. O'Brien, 391 U.S. 367 (1968) applies.  On its bare language, I would think the ordinance is content based, but this is not an unreasonable application of the Pap's precedent.  Anyhow, once O'Brien applies, you pretty much know the challenger is going to lose.  Sho'nuff.

Is the Texas court right?  Who knows?  Maybe SCOTUS will take the case up and replace Pap's with an actual majority opinion.

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