Strip clubs seek emergency help at high court

Strip clubs have turned to the Texas Supreme Court in an attempt to stop the state from collecting the $5-a-head “pole tax” that the state Legislature passed in 2007. In a motion for emergency temporary relief and a petition for mandamus filed May 5, the clubs argue that the U.S. Supreme Court has repeatedly held that exotic nude or topless dancing is protected speech under the First Amendment. The clubs further argue in In Re: Texas Entertainment Association Inc., et al. that the nation’s highest court has held that a tax on protected speech suppresses it. “The State tax challenged in this case is expressly imposed on protected speech,” the clubs allege in their motion and petition. In March, Austin’s 53rd District Judge Scott Jenkins held in Texas Entertainment Association, et al. v. Combs, et al. that the $5 cover fee imposed by Subchapter B, Chapter 47 of the Texas Business & Commerce Code on sexually oriented businesses that feature live nude entertainment violates those businesses’ First Amendment rights. Jenkins enjoined the state from collecting the tax. The state appealed Jenkins’ judgment to Austin’s 3rd Court of Appeals, and the state began collecting the fee April 21. The club owners sought to enforce the injunction, but 345th District Judge Stephen Yelenosky ruled against them April 17. The 3rd Court denied the club owner’s emergency motion for temporary relief April 21. In their mandamus petition, the club owners are asking the state Supreme Court to order the trial court or the 3rd Court to enforce the injunction. The club owners argue in the petition that allowing the state to collect the tax while the case is on appeal sets a dangerous precedent. “Now, anytime any governmental entity wants to suppress unpopular speech, it can simply levy a tax directly on that speech, knowing that even if it  ultimately loses, it will have years of appellate review during which it can suppress and perhaps ultimately silence the speech,” the club owners argue in the petition. The Supreme Court has given the Texas Office of the Attorney General until May 15 to file a response, according OAG spokesman Tom Kelley. The OAG will have no comment on the case at this time, Kelley says. 
-- Mary Alice Robbins