Another legal victory?

November 20, 2009

In all my years of practicing law, I have never had two days like the last two. For yesterday's news, see my previous blog posting. Today, the Utah Supreme Court, by a vote of 4 to 1, basically upheld a 10% "gross receipts tax" on adult businesses featuring nudity. But, after doing so, it invalidated the tax as it applies to escort agencies, as the terms of defining such agencies were too vague. Thus the law put many "legitimate" businesses in jeopardy. In this case, I represented five escort agencies and two dance establishments, so most of my clients "won", in that they do not now have to pay the tax. The other two lost, as they may have to pay the tax, depending on the degree of nudity of their dancers. It seems, however, that the legislature can put the tax on escort agencies back in effect by simply reworking their definitions, to make it more clear who they are after. So, the victory is not complete, even though it feels pretty good for some of my clients right now. Some of them are in line for big refund checks.

The court said that the tax was not aimed at dancing as entertainment, but was aimed at nudity, whether it was entertainment or not. Frankly the ruling conflicts with many rulings of other courts, including the U.S. Supreme Court. Other states are considering similar taxes, and this ruling could be very bad in the long run for all of my clients and for many others around the country.

Thank you Madam Chief Justice, for your principled defense of the First Amendment, even when you are the "lone voice crying in the wilderness". Your opinion will yet be vindicated.

So, watch this space for news of what I hope will be a Petition for review to the U.S. Supreme Court. And, Mr. Attorney General, the last two days are an indication that we will see lots of each other in court over the next several months. May the best cause win. And freedom is always the best cause.