WASHINGTON — Two civil liberties organizations filed an amicus brief Tuesday supporting a petition asking the U.S. Supreme Court to hear an appeal in a case involving whether a tax specifically aimed at adult entertainment establishments violates the First Amendment.
The Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Association (FALA) submitted legal arguments asking the court to grant certiorari in Georgia Association of Club Executives v. Georgia. Late last year, the Georgia Supreme Court ruled in favor of the state in that case.
At issue is a state tax requiring establishments that serve alcohol and feature “nude or substantially nude persons” dancing or engaged in “movements of a sexual nature” to pay an annual “state operation assessment” of either 1% of their gross revenue or $5,000, whichever is greater.
The plaintiffs’ petition contends that this tax “singles out businesses defined by the content of their expression.” Because the tax is content-discriminatory, the plaintiffs argue, it should be subject to strict legal scrutiny under the First Amendment, whereas the Georgia Supreme Court applied only intermediate scrutiny in its ruling.
Adult industry stakeholders may be familiar with the concept of strict scrutiny due to its centrality in Free Speech Coalition v. Paxton, the case challenging Texas’ age verification law. That case is currently pending, after the U.S. Supreme Court heard oral arguments in January.
“Laws that regulate speech based on its message or subject matter are rightly treated with extreme skepticism because they pose the greatest risk of government overreach,” the FIRE/FALA amicus brief notes. “The content-based distinction is what keeps government from appointing itself the ultimate editor of American discourse, deciding what speech is safe, what speech is suspect, and ultimately, what speech survives.”
In an article for Reason, Emory University law professor Sasha Volokh, who is petitioning the Supreme Court on behalf of the club execs, wrote, “As a content-discriminatory enactment, this tax should be evaluated under strict scrutiny — and should fail because the government could have raised the same amount of taxes in a non-content-discriminatory way, out of general revenues.”
The petition notes that SCOTUS has previously stressed “the general rule that content discrimination is highly suspect and that strict scrutiny is the norm in such cases, even when the government asserts content-neutral justifications.”
It further quotes the late Justice Antonin Scalia, who wrote, “The vice of content-based legislation — what renders it deserving of the high standard of strict scrutiny — is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”
Finally, the petition points out, “A revenue officer will have to inspect the ‘entertainment’ to determine whether the subject matter is erotic. This is the very definition of ‘content based.’”