The strip clubs have paid the tax for the last decade, under threat of criminal prosecution by state officials, but they say they want refunds because taxing performances by exotic dancers violates those dancers’ First and Fourteenth Amendment rights.
Previous court cases have held that exotic dancing is protected by the First Amendment. Attorneys for the strip clubs cite a 2001 decision out of the Sixth Circuit, Deja Vu of Nashville Inc. v. Metropolitan Government of Nashville and Davidson County, Tennessee, in which judges wrote that “entertainers and audience members … are certainly engaged in a ‘collective effort on behalf of shared goals.'”
Lawyers for the strip clubs say [pdf] the taxes are being levied on the exercise of free speech rights; targeted at a small and specific group of speakers; and aimed at the content of that free speech — that is, exotic dancing. All three types of taxes have been ruled unconstitutional in previous Supreme Court decisions.
Nevada’s Department of Taxation disagrees. The tax, the department says in court filings, is an excise tax on business transactions.
The strip clubs originally filed the case in 2006, though they have lost before a Las Vegas federal court, the Ninth Circuit Court of Appeals and a state court in Clark County, Nev. The case before the state Supreme Court on Wednesday will hear arguments over procedural processes available to the eight strip clubs after the Nevada Tax Commission rejected their requests for a refund under the 2003 law.