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Bushco v. Utah State Tax Commission (2009)

02 July 2009 Published in Resolved Cases

Free Expression - During its 2004 general session, the Utah State Legislature passed H.B. 239, “Sexually Explicit Business and Escort Service Tax,” which imposes a substantial tax on businesses that provide escort services or feature “any nude or partially denuded individual.” The ACLU of Utah and others lobbied against the bill, warning that legislators’ unsupported assertions that there is a connection between the types of businesses targeted by the bill and sex crimes were not enough to provide a compelling state interest for such a punitive tax scheme. Absent such an interest, the bill’s selective taxation is, in effect, a content-based restriction on constitutionally protected expression, and it is impermissible under the First Amendment.

Additionally, even if legislators could provide a compelling state interest for imposing the tax, the bill’s definition of “sexually explicit business” is so broad (it could, for example, include theater and other performing arts groups) that it would fail the courts’ requirement that any restriction on speech be narrowly tailored to address that interest. Legislators were undeterred by our arguments. In 2004, ACLU of Utah board member W. Andrew McCullough filed a lawsuit on behalf of several escort services and nude dancing establishments challenging the law’s constitutionality, and in 2007, the Utah Supreme Court agreed to hear the case. On November 16, 2007, the ACLU of Utah filed a friend-of-the-court brief with the Utah Supreme Court in which we asked the court to find the law unconstitutional.

In a blow to First Amendment-protected expression in Utah, the Utah Supreme Court rejected in part the challenge to the law in its decision released on November 20, 2009. The court found that the state’s asserted interest in targeting sex crimes was sufficient to justify the law. A dissenting opinion by Justice Durham stated that the law does indeed unconstitutionally and unjustifiably restrict certain speech in violation of the First Amendment – a view emphatically shared by the ACLU of Utah in its amicus brief to the case.