SAN ANTONIO — The Texas Supreme Court is deciding whether to strip away a $5 entrance fee to watch nude dancers.
The so-called pole tax, requiring strip clubs in Texas to levy the admission charge, made its way Thursday to the state's highest court. Talk about strippers engaging in free expression was balanced by rebuttals about tax and zoning precedents as justices considered the law designed to fund programs for sexual assault victims.
"Is it proper or not for the state to have the position that live nude dancing should be discouraged?" Chief Justice Wallace B. Jefferson asked attorneys for the strip clubs. "Is it unconstitutional for the state to target live nude dancing because it believes it's culturally unsound, immoral?"
Lower courts have sided with the strip clubs, ruling that the fee that has collected more than $13.6 million since 2008 is an unconstitutional regulation of free expression.
The law specifically applies to strip clubs that sell alcohol. Texas Solicitor General James Ho told the nine Republican justices that the fee is justified, since the state could already impose bans on both.
"It would be turning the First Amendment on its head to say that you can criminalize but can't impose a modest regulation," Ho said.
The court is not expected to issue a ruling for months.
Justices heard arguments at St. Mary's University in an auditorium packed with law students.
One of the liveliest exchanges was when one of the justices asked Craig Enoch, attorney for the Texas Entertainment Association, what exactly nude dancers express in their shows.
"Eroticism," said Enoch, who is also a former state Supreme Court justice. "It's seeking to create emotion."
The admission fee, passed by the Legislature in 2007, was projected to raise about $44 million over the first two years for sexual assault prevention programs and health care for the uninsured.
The Texas Entertainment Association, which represents strip clubs across the state, sued. A state district judge struck down the law in 2008. Then a 2-1 ruling by the Austin-based 3rd Court of Appeals said the tax improperly singles out one form of expression, nude dancing, for regulation.
The millions collected in fees so far are being held in an account pending the outcome of the legal battle. Revenue reports from the state comptroller suggest that around 2.7 millions strip club customers have been slapped with the fee since it went into effect, even as many clubs ignore the fee.
Lawmakers in Georgia and New York have proposed similar strip-club fees.