That’s because, depending on the outcome of a case pending before the Utah Supreme Court—Bushco vs. Utah State Tax Commission—all-nude strip clubs and escort services may end up paying 10 percent of their income to the tax commission for showing the extra skin. The 2004 state law at issue has gained the attention of the American Civil Liberties Union of Utah, which believes strip-club owners aren’t the only ones who should be worried. An ACLU attorney argues any business that displays partial nudity—even theaters or art schools employing nude models—could be penalized.
If the tax commission wins, the 10 percent tax levied against “sexually explicit businesses” would be set aside for sex-offender treatment in the state. Legislators behind the bill argued that strip clubs contribute to the committing of sex offenses. Some, like ACLU staff attorney Marina Lowe, consider the law dangerously vague.
“The way our Legislature has defined ‘sexually explicit business’ is substantially overbroad,” says Lowe.
Lowe filed a friend-of-the-court brief to the Utah Supreme Court arguing that the law’s definition of a sexually explicit business as one that “employs someone partially or completely denuded,” could include theatrical productions and art schools that pay nude models for sketching classes.
“They’re trying to tax away businesses they don’t like, and that is absolutely unconstitutional,” Lowe says.
Sen. Chris Buttars, R-West Jordan, who supported the law in 2004, believes the ACLU is off the mark “They [the tax commission] know who they’re hunting for and they’re not going to tax some art gallery with a woman naked from the waist up.”
Targeting sexual businesses was the aim of the bill introduced by former Rep. Duane Bourdeaux, D-Salt Lake City, who hoped $500,000 in taxes the first year would be collected to fund sex-offender treatment.
For some, the noble cause doesn’t change the fact that it’s taxing free speech.
“The Supreme Court has always said, ‘You don’t get to tax it just because you think it’s sleazy,’” says Andrew McCullough, lead defense attorney in the case. “The Supreme court is replete with cases where it was shown you can’t tax businesses based on their content.
“They claim that they’re not taxing content, but the big fuss has been over how much of the breast of a dancer is covered, and they [tax commission] have gone back and said if dancers have full pasties they are tax-exempt—now if that’s not content-based thinking, I don’t understand anything about the term.”
McCullough has filed four different complaints because his clients kept changing. He previously represented strip clubs, including Trails, where dancers wear pasties. Since the Utah Tax Commission decided the wearing of pasties exempted these clubs from being considered “sexually explicit,” he now represents the all-nude Southern Exposure in north Salt Lake City, American Bush and several escort agencies.
While this law can’t tax the majority of Utah strip clubs, that’s not how Bourdeaux intended it.
“They are the main ones [non-nude strip clubs] we were going after. That’s where most of the people frequent,” says Bourdeaux, who regrets these businesses have been exempted from the proposed taxation.
McCullough argued that even the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders refuted the connection between such businesses and sex crimes.
Bourdeaux disagrees. “If you talk to clients who abuse kids, this type of industry has contributed to their pedophilia,” Bordeaux says.
Bourdeaux is confident the language isn’t as vague as the ACLU claims, and disagrees that the law will tax the businesses to death. “We’re not saying people can’t go out and enjoy themselves, we’re just taxing something that has secondary effects that can degrade the quality of life for others. We tax alcohol; why can’t we tax this?”
Since the Supreme Court probably won’t hear arguments for several months, the battle has just begun. McCcullough considers the stakes to be pretty high. “This is an all-out attack on free speech.”