SALT LAKE CITY – Citing First Amendment violations, the American Civil Liberties Union of Utah filed a friend-of-the-court brief with the Utah Supreme Court today in a case challenging a state law that imposes a substantial tax on businesses deemed to be “sexually explicit.”

“The power to tax is an awesome responsibility, and lawmakers must be careful that they do not run afoul of the Constitution by singling out particular speech or expression for taxation,” said ACLU of Utah staff attorney Marina Baginsky Lowe. “Unfortunately, this law does exactly that.”

At issue in the case is a 2004 law that imposes a 10 percent tax on all gross income from businesses that feature “any nude or partially denuded individual.” While courts have upheld time, place, and manner restrictions on businesses featuring nude dancing, they have not allowed governments to selectively restrict that practice absent a compelling state interest. At the time the Utah state legislature considered the law, the ACLU of Utah and others lobbied against it, warning that legislators’ unsupported assertions that there is a connection between the types of businesses targeted by the bill and sex crimes were not enough to provide a compelling state interest for such a punitive tax scheme.

“The burden is on the state to show that there is a compelling government interest to impose this tax, and they have not done so,” said W. Andrew McCullough, attorney for plaintiffs and long-time ACLU of Utah board member. “Absent a compelling state interest, the bill’s selective taxation is, in effect, a content-based restriction on constitutionally protected expression that is impermissible under the First Amendment.”

The ACLU of Utah’s brief also argues that even if legislators could provide a compelling state interest for imposing the tax, the law’s definition of “sexually explicit business” is so broad that it would fail the courts’ requirement that any restriction on speech be narrowly tailored to address that interest.

“Under the law, it is possible that theater and other performing arts groups in which one of the performers is ‘partially denuded’ could be classified as a sexually explicit business,” said Lowe. “The Utah State Tax Commission is therefore in the constitutionally uncomfortable position of reviewing the content of a performance to determine whether a business should be taxed.” 

The case is Bushco v. Utah State Tax Commission. The ACLU of Utah’s brief is available online at:
www.acluutah.org/docket.htm#bushco