Jonathan Turley, a constitutional law expert at George Washington University, said the Texas tax goes too far. "It seems clear legislators are targeting strip clubs because they're unpopular," Turley said. "Laws like this would expose any unpopular industry to punitive taxes. It could be abortion clinics."Let's give Professor Turley the benefit of the doubt here and assume that he was quoted out of context. There is, after all, nothing per se unconstitutional about legislators targeting for taxation those activities that are unpopular. So-called "vice" taxes on tobacco products, alcohol and other products or services the state wishes to discourage may or may not be wise policy. Such taxes may be regressive and if too substantial, may lead to black markets, for example. But they only raise constitutional concerns where the goods or services singled out for taxation are constitutionally privileged. That's true of an abortion clinic (Turley's example) and, under current Supreme Court First Amendment doctrine, may or may not be true of the Texas "pole tax," depending on whether Texas can plausibly claim that the tax targets the non-expressive "secondary effects" of strip clubs. My view is that a tax on all customers of strip clubs cannot readily be defended as targeting secondary effects, but I'll leave it to holiday readers to argue it out for themselves.
Posted by Mike Dorf