Alexander Sasha Volokh Emory University School of Law Alexander Volokh, Emory University School of Law

Law professors are laying bare what they believe to be the realistic chances of a lawsuit challenging a new tax on strip clubs.

In an interview with Celeste Headlee during Georgia Public Broadcasting’s “On Second Thought” program last week, professor Eric Segall of Georgia State University College of Law didn’t credit the lawsuit with much hope for success. “They’re gonna lose,” Segall said.

Professor Alexander Sasha Volokh of Emory University law school told the Daily Report this week that he disagrees. “I do think there is a good First Amendment argument against the law,” Volokh said. He added that the U.S. Supreme Court has “recognized in many cases that nude dancing is a form of speech that gets some protection. The question is, just how much protection does it get?”

The lawyers who filed the complaint have engaged Volokh, a former clerk to Justices Sandra Day O’Conner and Samuel Alito, as a consultant on their free speech arguments.

One of those lawyers, Nicholas Corser of Freed Howard said, “We think we have a novel argument on the First Amendment and the vagueness of how the law is written. The law is so vaguely written that it could apply to any entertainment venue that serves alcohol.”

The Georgia Association of Club Executives sued Attorney General Chris Carr and Department of Revenue Commissioner Lynnette Riley in Fulton County Superior Court last month. “Nude dancing is a form of free speech protected by the Georgia and United States Constitutions,” the club execs said in the lawsuit. The group is asking for a declaratory judgment that the tax is unconstitutional, and for an injunction to stop the commissioner from collecting it and prosecuting for 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.

Along with Corser, the club owners’ legal team includes Gary Freed of Freed Howard and criminal defense lawyer and former DeKalb County district attorney J. Tom Morgan.

The attorney general’s communications director said the office cannot comment on pending litigation.

Freed said the state has filed a motion to dismiss, and his brief in response is due in two weeks.