To assess the odds of success for a lawsuit filed by strip club owners over a new tax, a public radio host engaged a constitutional law professor in an on-air conversation about whether nude dancing is protected speech.
Bottom line: Don’t bet on it.
Professor Eric Segall of Georgia State University College of Law talked about the strip club owners’ complaint with Celeste Headlee during Georgia Public Broadcasting’s program “On Second Thought“ this week.
The Georgia Association of Club Executives sued Attorney General Chris Carr and Department of Revenue Commissioner Lynnette Riley last month seeking to block collection of a tax set to go into effect next year.
“Nude dancing is a form of free speech protected by the Georgia and United States Constitutions,” the club execs said in the lawsuit, filed in Fulton County Superior Court. The group asked for a declaratory judgment that the tax is unconstitutional and for an injunction to stop the commissioner from collecting it and the AG from launching prosecutions over refusals to pay it.
Legislators designed the tax to support the Safe Harbor for Sexually Exploited Children Fund and created a commission to administer it. The club owners argue that they are being unconstitutionally targeted.
“Unfortunately, that argument loses every time in virtually every state,” said Segall, a scholar who studies the U.S. Supreme Court. The high court has ruled that such a law “really targets the secondary effects of strip clubs,” he said. Related businesses and their impact on real estate values and community life have not been given protected status.
The professor questioned the logic of the lawsuit. “I don’t think the clubs are being targeted,” he said. “It’s not a speech law.”
But he also offered strip clubs a bit of free legal advice: They might try an equal protection argument instead.
“There has to be a rational reason why this tax is being imposed on strip clubs,” he said.
The reason can’t be just that Atlanta is trying to shake its reputation as the sex trafficking capital of the world, the professor added. And he opined that seems to be a separate issue from strip clubs, which have not been proven to be linked to and in fact would be shut down if they supported human trafficking.
Still, the club owners have a problem, he said.
“Courts are very unsympathetic to these claims,” Segall said. “They’re gonna lose.”