Court Says Lap Dancing Isn’t an Art Form

Posted October 25, 2012 in Taxation by


New York’s highest court ruled on Oct. 22 that strip club patrons must pay sales tax on admission fees because the clubs’ featured entertainment does not qualify for the state’s tax exemption afforded to “dramatic or musical arts performances.”

But it was a divided court, with the dissenting judges debating the artistic merit of pole and lap dances and arguing there were constitutional problems with the decision.


State Tries to Promote Art

New York imposes a sales tax on admission charges for a wide range of “place[s] of amusement,” according to the New York Court of Appeals’ majority opinion, joined by four justices. But “with the evident purpose of promoting cultural and artistic performances in local communities,” the state legislature gives a tax exemption for “dramatic or musical arts performances.”

New Louden, the company which operates Nite Moves, a strip club in Albany, N.Y., argued that its “exotic stage and couch dances . . . qualify as musical arts performances, rather than as more generalized amusement or entertainment activities,” and weren’t taxable. The justices forming the majority disagreed, although they did throw Nite Moves a bone by referring to it as “an adult juice bar.”

The court gets caught in the weeds of evaluating ‘expert’ opinions presented by the club about what counts as artistic or “cultural” dance. A dangerous moment in any judge’s life, since, among other things, it raises First Amendment issues.

“The decision is not surprising, as the courts by and large have not been very protective of adult-oriented expression,” notes David Hudson, a scholar at the First Amendment Center in Nashville.



‘I Don’t Read Hustler,’ but…

The three dissenting justices, on the other hand, said that the decision “makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems.”

“I find this particular form of dance unedifying – indeed, I am stuffy enough to find it distasteful,” admits the dissenting justice. But he goes on to give an example illustrating the problem with the majority’s opinion.

David Hudson

“I do not read Hustler magazine; I would rather read the New Yorker,” admits Justice Robert Smith. “I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently ‘cultural and artistic.’”

“That sort of discrimination on the basis of content would surely be unconstitutional,” says the justice. “It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.”

Hudson agrees that the justices in the majority are making an essentially unconstitutional distinction between high- and lowbrow dance, saying that the analogy to the magazines is particularly strong evidence of the real issue in this case – the government getting involved in decisions about artistic expression.


Side Effects Can Be a Doozy

“Distinguishing between acceptable and unacceptable art is mired in First Amendment problems,” Hudson says. “The mantra of secondary effects has eviscerated free-speech protections.” Secondary effects are the “allegedly harmful side effects of adult businesses,” such as crime, blight, and lower property values, and the courts have consistently stated the government can regulate these effects.

Taking the opposite point of view, however, is lawyer-activist Cathy Brennan, who sides with the majority opinion. She told Forbes, “The court’s decision is heartening in that it does not allow an entity that exploits women to pretend that it actually employs such women for ‘dramatic or musical arts performance.’”

“Pole dancing and lap dancing constitute sexual exploitation of women by men,” Brennan continued. “If it’s going to be legal for men to buy women in this way, government should at least tax the hell out of it.”

Do you think pole dancing should be considered a form of artistic expression and therefore merit a sales-tax break? Share your opinion below.

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