Score two for the state’s strip clubs.
The 3rd Court of Appeals panel sided against the $5 per-patron fee, passed by the Legislature in 2007 with the goal of raising sexual-assault prevention funds, in a divided 2-1 opinion released Friday.
The split decision, which contained a dissent by the panel’s only Republican justice, rejected the state’s argument that the fee is a lawful alcohol regulation. The justices, rather, said the charge amounted to a content-based tax on protected speech at sexually oriented businesses.
“Differential taxation based on content is subject to strict scrutiny,” the justices wrote in the opinion, referring to a legal standard for such cases that allows speech regulations only if there is an compelling government interest in protecting the public.
Advocates for sexual assault programs were heartened, though, by a strongly worded dissent by Justice David Puryear and by a concurring opinion by Chief Justice J. Woodfin Jones that seemed to open the door to similar regulation in the future.
“We’ve always known that this case would end up at the Texas Supreme Court, no matter how the 3rd Court ruled,” said Torie Camp, deputy director at the Texas Association Against Sexual Assault. “We look forward to pressing those very same arguments before the Texas Supreme Court.”
Puryear wrote that the law should stand because it isn’t aimed at preventing or suppressing topless dancing, but rather seeks to combat a possible correlation between alcohol, erotic expression and sexual assault.
“The statute seems concerned with the regulation of alcohol or the regulation of alcohol and erotic entertainment rather than the suppression of any specific erotic expression,” he wrote.
The original suit was filed in December 2007, three months after the law took effect. The law was struck down last March. You can find the court’s opinion upholding the ruling, written by Justice Henson, here, Chief Justice Jones’ concurring opinion here, and Justice Puryear’s dissent here. I tend to agree with Ms. Camp that the Third Court has given the state hope going forward. Having said that, given the glacial pace at which the Supreme Court operates, I think there’s an excellent chance that the 82nd Lege will be able to address this before they issue a ruling.