A Nevada bill that would impose a
10 percent tax on strip club dancing will be struck down in
court if lawmakers pass it, an American Civil Liberties Union
lawyer said on Wednesday.
"You can not have a special tax aimed at First Amendment
activity based on content," said Allen Lichtenstein, general
counsel of the ACLU of Nevada.
"Adult entertainment, which is protected by the First
Amendment, is being targeted to bear the burden of taxes where
other businesses are not," Lichtenstein said, referring to the
bill. "To single out a particular business based on content and
tax it with a special tax is unconstitutional."
Don't get me wrong, I am certainly happy that the ACLU has suddenly discovered the rights of taxpayers, but they seem a bit late to the party. I mean, states that charge the same tax to every business, especially the same sales tax rate, are the exception. States all charge special hotel rates, rent car taxes, airport fees, long distance surcharges, etc etc. For example, here are just a few of the special unique industry-specific taxes on the California BOE site (by the way, you know you live in a socialist state when your tax department is called the "Board of Equalization"):
- Alcoholic Beverage Tax
- Alternative Cigarette Tax Stamp Program (ACTS)
- California Cigarette & Tobacco Products Licensing Act of 2003
- California Tire Fee
- Cigarette and Tobacco Products Tax
- Emergency Telephone Users Surcharge
- Energy Resources Surcharge
- Integrated Waste Management Fee
- Natural Gas Surcharge
- Tax on Insurers
- Oil Spill Response, Prevention and Administration Fee
- Underground Storage Tank Maintenance Fee
- Childhood Lead Poisoning Prevention Fee
- International Fuel Tax Agreement (IFTA)
- Interstate User Diesel Fuel Tax (DI) Program
- Motor Fuels
- Aircraft jet fuel tax
- Diesel fuel tax
- Motor vehicle fuel license tax
- Motor vehicle fuel tax
- Use fuel tax
- Hazardous Substance Tax
- Environmental Fee
- Facility Fee
- Generator Fee
- Disposal Fee
- Tiered Permitting Fee
- Activity Fee
- Occupational Lead Poisoning Prevention Fee
- Ballast Water Management Fee
- Rent car taxes (by city and county)
- Hotel/motel special tax (by city and county)
This is far from a complete list, but you get the idea. This article from the Tax Policy Center explains that narrow industry specific excise taxes have a very long history in this country. And this completely leaves off the issues of subsidies that are targeted at particular industries, such as the billions in direct subsidies received by farmers, not to mention the additional billions in price supports they get as well. (Reason, by the way, has done some entertaining research on the millions of dollars of farm subsidies received by the family of Farm-aid founder John Cougar Mellancamp). I am eager to see the ACLU begin tackling these other "special taxes" on "particular businesses".
I am not sure what motivated the ACLU to finally join the taxpayer cause, other than perhaps a personal financial interest their leadership team might have in this particular tax, but I for one am happy to welcome them to the cause.
Update: I am still having fun trying to imagine how the ACLU, the supposed protector of individual rights that has never had a problem up 'till now with our class warfare tax rates that are zero on some Americans and 40+% on others, suddenly had an epiphany about unequal levels of taxation when it comes to taxing strippers. I have this visual picture in my head of the local head of the ACLU slipping a five into an entertainers g-string but getting mad when he couldn't get the two extra quarters in there to pay the tax.
Update #2: By the way, for all the flippancy in my post about the ACLU, they are absolutely right in this case, if way too narrowly focused. I criticize the ACLU often because of the 21 policy areas it considers critical to individual rights, none have anything to do with property rights or economic freedom. However, the ACLU is a strong and consistent defender of free political speech during a time when speech is under attack from all sides of the political spectrum. The ACLU realized early on something the left still won't acknowledge, that it is impossible to separate regulation on spending for speech from restrictions on speech itself.
Unfortunately, what the ACLU refuses to recognize is that all commerce, not just purchasing political ads or buying couch dances, is a form of communication and free expression. The economy is nothing more than individuals, millions of times a day, communicating and reaching agreements to trade for mutual benefit. Why is it any less of a restriction of free speech when the government places restrictions on this communication, say by restricting the range of wages I can offer an employee? Or, more obviously, how can the government place regulations on what I can say about my company in an advertisement, but not on what I say about a political candidate?
The ACLU in this case seeks to evade sanctioning free speech in that dirty commercial world by apparently arguing that stripping is not commerce but artistic expression. But by that logic, the government shouldn't be allowed to tax building and construction, for surely buildings are a strong and lasting form of art and expression. Or how about cars - I certainly consider a Ferrari a much higher form of expression than a couch dance. How can the government tax cars? Or what about T-shirts with a political message -- can governments charge sales taxes on those? What about the lawn service I pay to have a beautiful green lawn, which is the ultimate form of suburban expression?
At the end of the day, it is impossible to separate money and commerce and property from speech and expression. Commerce is the most ubiquitous and important form of free expression we have in this country. So far, the ACLU seems to acknowledge this fact only for topless dancers and politicians. I wish they would extend their efforts to protect both free speech and free commerce to the rest of us.