Utah justices uphold strip club tax

By Chris Rizo | Nov 23, 2009

Matthew Durrant

W. Andrew McCullough

SALT LAKE CITY (Legal Newsline)-The Utah Supreme Court has upheld the state tax on strip clubs but said the levy shouldn't be charged to companies providing escort services.

Since Utah's Sexually Explicit Business and Escort Service Tax is "content-neutral," it does not take aim at constitutionally protected speech, Associate Chief Justice Matthew Durrant wrote for the high court's 4-1 majority Friday.

He wrote that the justices found noting in the tax's legislative history or in the text of the tax itself, "establishing that the tax was enacted with the predominant purpose of suppressing protected expression."

In 2004, a group of erotic dance clubs and escort services filed challenged the 10-percent tax on admission fees and user fees, claiming that the tax violates their First Amendment right to freedom of speech and their Fourteenth Amendment right to equal protection under the law.

The group was represented by First Amendment lawyer W. Andrew McCullough, a perennial Libertarian candidate for state attorney general.

As for collecting the tax from escort services, the justices said the state's definition of an escort is vague, possibly subjecting unintended groups such as tour guides to the tax.

"The tax fails to provide adequate information for a person of ordinary intelligence to distinguish between those types of compensated companionship that the Legislature intended would trigger application of the tax and those that it intended would not," Durrant wrote.

Money generated by the tax is used by the Utah Department of Corrections to help pay for sex offender treatment and by the state attorney general's office for its Internet Crimes Against Children Task Force.

In an Associated Press story, McCullough said he would like to appeal the case to the U.S. Supreme Court.

"The implication is that the Supreme Court said that they're not taxing dancing, they're taxing nudity. Frankly, that's just preposterous. They are taxing artistic expression and it's just wrong," he was quoted by AP as saying.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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