By Royce West
Texas Senate

In 2007, the Texas Legislature enacted a $5 per customer fee on adult businesses that combine live nudity with the consumption of alcohol. The bill was intended to raise funds for use in the prevention of sexual assault, and other health-related issues. I was the Senate sponsor for House Bill 1751, legislation that garnered strong bipartisan support in both capitol chambers.

The industry immediately filed suit claiming the law violates the First Amendment and the case has been in the courts ever since. In August, the Texas Supreme Court unanimously rejected industry arguments and upheld the fee, reversing two lower courts. The ruling shocked many in the industry and media observers. It should not have, for numerous reasons.

Nearly four decades of legal precedent compelled this result. While the U.S. Supreme Court has held that adult expression deserves some First Amendment protections, it does not preclude state and local regulation. In case after case, the U.S. Supreme Court has affirmed that state and local governments may prohibit public nudity--including erotic nude dancing. The Court has also upheld laws forbidding the consumption of alcohol in places of adult entertainment.

The reason is simple. As even the trial court in this case conceded, live nude dancing and alcohol consumption is a combustible combination that can lead to numerous social ills, including rape, prostitution, and other crimes.

If an outright ban on public nudity is within constitutional limits, then too must the Texas fee be valid. If combining alcohol with public nude dancing is an offense punishable by jail, surely a state can impose a lesser sanction or otherwise regulate such activities.

A recent Fort Worth Star Telegram editorial ridiculed the fee, claiming that any alleged deterrent effect under the Texas law is "a dubious claim at best." Just days later, an industry source complained to the Abilene Reporter-News that under the fee, "eight out of 10 strip clubs in the state of Texas will close." Obviously, these opinions of the law's impact differ greatly.

But perhaps the best reason why the ruling should surprise no one is this: The industry itself never believed its own legal argument. With litigation on-going, industry representatives lobbied the Texas Legislature to repeal the entry fee and replace it with a tax on any admissions fees charged by any adult business.

Under the industry's strategy, any business wishing to avoid the fee could simply decline to charge an admission fee (and instead raise prices on anything the patron might purchase after they've entered). But as a legal position, the effort was hypocritical. If Texas' fee that applied only to combining public nudity and alcohol sales was unconstitutional, how could the industry proposal be valid when it would apply to adult expression of any kind?

Fiscal projections for HB1751 estimated that the $5 fee would generate in excess of $53 million in 2009, the first full year of implementation. Each biennium, the first $25 million in proceeds would go to sexual assault related programs and remaining monies would be deposited in the Texas Health Opportunity Fund. To date, only about $15 million has been collected.

Funds targeting sexual assault related programs could provide grants to rape crisis centers, victim assistance programs, sexual violence prevention programs, sexual assault nurse examiner and sexual assault nurse education programs.

It's time for the court cases to end and the help for victims to begin.

###