Attorney General Greg Abbott has asked the Texas Supreme Court to rule on the legality of a bill which allowed Texas strip clubs to impose a $5 cover charge on all patrons.
The bill, known as the “pole tax,” was authored by state Rep. Ellen Cohen, D-Houston, and stipulates that the fees be used to fund sexual violence prevention programs as well as provide health coverage for the uninsured. The legislation went into effect Sept. 1, 2007, but has since been appealed multiple times through state courts. Cohen said he feels that the bill helps women who have been subjected to sexual violence.
“There is clear documentation that where alcohol and nude dancing occur there is an increase in sexual violence,” Cohen said in reference to research published by William H. George, a professor at the University of Washington, in the Journal of Interpersonal Violence.
But none of the money collected has been given to sexual violence prevention programs due to a suit brought by the Texas Entertainment Agency almost immediately after the bill passed. In March 2008, 53rd District Court Judge Scott Jenkins struck down the bill, deeming it unconstitutional under the First Amendment’s protection of freedom of expression. Jenkins ruled that the connection between strip clubs and sexual assault was plausible, but allowing the fee to fund the uninsured made the bill too broad.
“The basic idea that a state can apply a surcharge to a business that is legal with negative consequences does not strike me as troubling,” said Robert Jensen, a UT journalism associate professor. “We tax cigarettes. It’s appropriate to levy a tax on those services or goods to help society deal with those negative consequences,”
Jensen was presented as an expert witness at an injunction hearing about the bill in 2007. Jensen is the author of two books analyzing the consequences of pornography and has been a longtime supporter of the Texas Association Against Sexual Assault.
Tori Camp, deputy director of the Texas Association Against Sexual Assault, said that the association is examining the connection between live nude entertainment, alcohol and sexual violence. Camp noted that over the past 40 years, the U.S. Supreme Court has ruled that nude dancing is on the fringes of First Amendment protection.
“The state never argued to our court that erotic dancing is not protected by the First Amendment. The question was whether the law was justified in spite of this First Amendment intrusion,” said Matt Bachop, staff attorney of the 53rd District Court. “The state’s position is that there was a slight intrusion, but that it was justified nevertheless.”
Ellen Cohen recently attempted to reform the original bill with another, which lowered the fee from $5 to $3 and removed funding for the uninsured. Two weeks ago, the bill was dropped when it failed to receive a vote.
“Nobody likes it when someone takes your money,” said the manager of an Austin strip club, who asked to remain anonymous when asked how the fee affected daily business. He also said that he heard complaints from sexual assault programs that collected the funds but are unable to use them until the ruling is final.
“We haven’t had a lot of [customers] complain about [the fee],” he said.
