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Utah Supreme Court Decision Restricting Certain Free Speech Violates First Amendment

19 November 2009 Published in Litigation Materials

In a blow to First Amendment-protected expression in Utah, the Utah Supreme Court rejected in part a challenge to a law that attempts to restrict or curtail nude dancing through taxation in its decision released on November 20, 2009. The law, originally enacted in 2004, imposes a 10-percent tax on all gross income from businesses that feature “any nude or partially denuded individual.” The American Civil Liberties Union of Utah, which filed a friend-of-the court brief in support of businesses subject to the onerous tax, expressed disappointment with the decision.

“The decision minimizes the impact of this law on Utah businesses and groups whose free speech rights are necessarily impacted. The state should not be able put an end to speech with which it disagrees, by simply taxing that speech out of business,” said Marina Lowe, staff attorney with the ACLU of Utah.

Under the First Amendment, when a state targets speech based on its content, the state must be able to demonstrate a compelling interest in so doing. This law singles out certain businesses, organizations and groups to be taxed on grounds that the state has a compelling interest in targeting sex crimes. In order to justify the law under that reasoning, argued the plaintiffs and the ACLU of Utah, the state would have to be able to draw a direct connection between businesses that feature “any nude or partially denuded individual,” and sex crimes. That connection, in the opinion of the plaintiffs and the ACLU of Utah, was not reasonably established by the state.

Unfortunately, a majority of the court disagreed, holding that the law does not single out speech based on its content, but rather targets conduct. Furthermore, 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.

Friday’s decision leaves many businesses and groups vulnerable to this draconian tax scheme - including performing arts groups who may feature nude or partially denuded performers as part of theatrical events (such as the classic Broadway musical production “Hair,” among others).

The case is Bushco v. Utah State Tax Commission. Read the The ACLU of Utah’s brief >>

Read the Supreme Court Decision with Dissenting Opinion by Chief Justice Durham >>