Maybe the plaintiff’s attorneys should have tried making the case that the dances are ethnic in nature, like Brahms’s Hungarian Dances. Then Lapp dances and Pole dances would automatically qualify for the same sales-tax exemptions enjoyed by ballet companies and opera houses.
They didn’t, however, and now a petition has been filed, requesting that the highest court in the land hear the case. The Wall Street Journal’s Law Blog has the details:
With the help of a leading First Amendment litigator, an upstate New York strip club is asking the U.S. Supreme Court to decide whether it’s entitled to the same sales-tax exemptions granted to ballets and opera houses.
Albany-area strip club called Nite Moves is challenging the state’s sales-tax policy on constitutional grounds. It’s filed a petition with the Supreme Court seeking to overturn a ruling by the state’s highest court last year.
The issue is whether the club’s cover charge and three-minute lap dances should be subject to an 8% sales tax. The club argues that the same tax code that exempts ‘dramatic or musical art performances,’ should also apply to strip-club performances, accusing the state of acting as a dance critic.
Attorneys for the state have maintained that the nude dancers at the club are not “engaged in a genuine choreographic dance performance.” That argument was enough to persuade the New York State Court of Appeals to rule against Nite Moves in October, though the decision was hardly unanimous. Three members of the 7-court panel held for the plaintiff.
The club’s lead attorney is Robert Corn-Revere, a veteran litigator from a noted Seattle-based law firm with a strong First Amendment track record. A group of adult entertainment establishments and publishing groups also submitted briefs in support of Nite Moves.
The petition they filed with the high court reads:
It is difficult to overstate the threat to free expression posed by the government’s misuse of power to levy taxes based on the content of speech or the identity of the speaker…The decision below disregards such concerns and embraces the notion that the government should be allowed to impose higher taxes, or selectively give tax breaks, based on its estimation of the relative ‘value’ of the speech.
The club’s CFO recognizes that the odds are long that the Supreme Court will agree to hear the case at all. “But we believe our case has as much merit and is as important to free speech nationally as any other that we will be petitioning the court in the next session,” he said.
Deciding where the line between art and obscenity falls is nothing new for the High Court.
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