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March 26, 2010 2:19 PM

Texas Gets Its Day to Defend Strip Club "Pole Tax"

Posted by Zach Lowe

A few short months ago, the proposed law hitting Texas strip club patrons with a $5-per-visit tax seemed almost deadTwo lower courts had struck it down, in part because of concerns it would violate the First Amendment by limiting the free speech of both patrons and dancers. 

But the state and three amici represented by K&L Gates convinced the Texas Supreme Court to hear arguments about the constitutionality of the law, and they are optimistic that the court may revive it after oral arguments Thursday, according to lawyers working on the matter and this write-up in the Austin American-Statesman. "I think it went very well," says K&L Gates partner Chris Kratovil, an appellate lawyer three amici turned to for help writing their briefs in the case. Kratovil represents the state legislator who sponsored the initial bill in 2007 and two legal organizations who back it because of its potential to limit domestic violence and other crimes, according to our prior reporting. 

The proposed tax would apply only to strip clubs that serve alcohol or bars that promote nudity-based activities, such as wet T-shirt contests, the American-Statesman says. The state contends that limiting demand for such establishments would reduce the number of sex assaults committed in the state. The strip clubs, represented by Winstead's Craig Enoch, claim the tax would violate the First Amendment by punishing unpopular speech. Enoch engaged the court in a spirited debate Thursday over whether nude dancing is an art form that should be protected by the First Amendment. "The act of dancing is expressive," Enoch told the justices, according to the American-Statesman. 

As The Wall Street Journal points out, lawyers from across the U.S. are watching the case. About a dozen states have enacted similar legislation, and the Utah Supreme Court upheld a similar bill in the first major test case of such a law. The Utah parties expect an appeal to the U.S. Supreme Court, the WSJ says.

And that's where the Texas case may end up, says Kratovil, who had little experience with the First Amendment before Texas state lawyers reached out to him to represent the amici, he says. "Regardless of who prevails here, there is a very high likelihood the losing side will file a petition for certiorari," Kratovil tells us. "We'd obviously prefer to be on the winning side."

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