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In the aftermath of an air strike on a northern Gaza hospital that marked a sharp escalation in the ongoing Israel-Gaza crisis, the Security Council today failed to adopt a resolution put forth by Brazil that would have called for humanitarian pauses to allow full, safe and unhindered access for United Nations agencies and their partners, due to a veto cast by a permanent member of the Council, the United States.

If adopted, the resolution would have condemned all violence and hostilities against civilians and all acts of terrorism, and would have unequivocally rejected and condemned the terrorist attacks by Hamas that took place in Israel starting on 7 October. It would have also called for the immediate and unconditional release of all hostages, and for the protection of all medical personnel and humanitarian personnel, as well as hospitals and medical facilities, consistent with international humanitarian law.

By other terms, it would have called for the rescission of the order for civilians and UN staff to evacuate all areas in Gaza north of the Wadi Gaza and relocate in southern Gaza. It would have also strongly urged the continuous, sufficient and unhindered provision of essential goods and services to civilians, including electricity, water, fuel, food and medical supplies, under international humanitarian law.

Although the United States cast a veto, the draft resolution garnered support from 12Council members, including two permanent members (China, France), with two other permanent members (United Kingdom, Russian Federation) abstaining.

Prior to voting on the text, the Council voted on two amendments proposed by the Russian Federation, neither of which were adopted as they failed to obtain the required number of votes. The first amendment, proposed above the first operative paragraph, would have called for an immediate and fully respected humanitarian ceasefire, while the second would have called for the insertion of a new operative paragraph unequivocally condemning indiscriminate attacks against civilians, as well as against civilian objects in the Gaza Strip resulting in civilian casualties, in particular the strike against Al Ahli Arab Hospital.

Speaking after the vote, Brazils delegate said that Council members had asked forhis countrys leadership to facilitate a response to the crisis, in particular its humanitarian aspects, stating: We heeded the call. In our view, the Council had to take action and do so very quickly. While the text proposed was robust and balanced, sadly, very sadly, the Council was yet again unable to adopt a resolution on the conflict, he said, adding that, again, silence prevailed to no ones long-term interest. Hundreds of thousands of civilians in Gaza cannot wait any longer, actually they have waited for far too long, to no avail.

The delegate of the United States, pointing to President Joseph R. Bidens trip to the region at present, saidthat, while she recognizes Brazils desire to move the draft resolution forward, the Council needs to let the hard work of diplomacy undertaken by her country play out. Expressing disappointment that the draft did not mention Israels right to self-defence, she noted that, although Washington, D.C., was not able to support the text, it will continue to work on the issue. When I talk about the protection of civilians, I mean all civilians, she added.

The Russian Federation deplored the hypocrisy and double standards of the United States, while pointing out that, even before todays vote, the Councils failure to adopt a resolution put forth by his delegation two days before looks appalling in light of the 17October attack on Al Ahli Arab Hospital. Quoting Lockheed Martin Chief Executive Officer James Taiclets statement to United States media, as an encapsulation of that countrys policy in the region, he said: Theres no point in restraining Israel from any military actions. [] There are conflicts which need to be resolved with arms and we are prepared to provide these arms, these weapons.

Meanwhile, Japans representative said that, while he had voted in favour of the text as he supported its main ideas and had in mind the humanitarian situation in Gaza, his delegation hadasked to delay the vote on the resolution proposed by Brazil, as diplomatic efforts by various countries, including the United States, were under way. Voicing regret that the text was brought to a vote today, he said his country would nonetheless work towards ensuring the safety of civilians and to realize an early de-escalation of the situation.

The delegate of the United Arab Emirates, noting that she voted in favour of the text as it stated basic principles, not because it was perfect, said: Each passing hour of this ruinous war makes a mockery of the principles of international humanitarian law. More Palestinians have died in this outbreak of violence than in any other in the history of the conflict, she said, voicing support for no less than a humanitarian ceasefire. As well, she called for an investigation into the attack on the hospital which provided medical care for Gazans for more than 140years. Although Hamas is indeed responsible for sparking this latest fire that is now engulfing the streets of the capitals around the region, she said: Make no mistake. The kindling was already there fuelled by decades of violent dehumanization.

THE SITUATION IN THE MIDDLE EAST, INCLUDING THE PALESTINIAN QUESTION

Statements before Voting

VASSILY A. NEBENZIA (Russian Federation), recalled that, during consultations on16October, many Security Council members sought to dissuade them on the depoliticized draft put forth by his country and asked to wait for 24hours to reach consensus, adding: We did not agree, and we were right. Two days later, changes that were proposed to the resolution had not been discussed, he said, voicing regret that the Council wasted 36precious hours, during which the number of casualties increased. In the context of the 17October strike on a hospital in Gaza, which killed hundreds, the Councils inaction looks appalling, he said, warning: The time for diplomatic metaphors has long gone.

Anybody that did not support the call for a swift ceasefire must understand they bear some responsibility for what has happened, he continued. The draft put forth by Brazil contained no clear call for a ceasefire, he said, stressing the need to de-escalate the situation on the ground. It instead proposed humanitarian pauses and unhindered access to humanitarian workers, he said, adding that pauses will not stop the bloodshed; only a ceasefire will. Therefore, his delegation put forward amendments: the first is a new operative paragraph to unequivocally condemn the indiscriminate attacks on civilians and civilian objects in the Gaza Strip, including the 17October air strike on Al Ahli Arab Hospital and to condemn the imposition of the blockade. The second amendment adds a new operative paragraph calling for an immediate, sustained and respected humanitarian ceasefire. If these amendments are not included, it will not address the devastating situation; it will only exacerbate divisions within the Council, he said, urging members to vote in favour of the amendments.

Action on Amendments

The Council then failed to adopt the amendments adding a first new operative paragraph to the text, as it did not obtain the required number of votes.

It received 6votes in favour (Brazil, China, Gabon, Mozambique, Russian Federation, United Arab Emirates) to 1against (United States), with 8abstentions.

The Council then failed to adopt the amendments adding a second new operative paragraph to the text, as it did not obtain the required number of votes.

It received7votes in favour (Brazil, China,Gabon, Mozambique, Russian Federation, Switzerland, United Arab Emirates) to 1against (United States), with 7abstentions.

Statements

SRGIO FRANA DANESE (Brazil), Council President for October, speaking in his national capacity, said the organs members asked for his countrys leadership to facilitate a response to the crisis, in particular its humanitarian aspects. We heeded the call. In our view, the Council had to take action and do so very quickly, he said.Council paralysis in the face of the humanitarian crisis is not in the interests of the international community, he added. He said that his country had tried to build a unified position, its focus was on and remains on the critical situation on the ground, adding that humanitarian law and international law provided a clear path for the action. He said that the text condemned all acts of violence against civilians and called for hostages immediate release and for all parties to abide by international legal obligations, including the protection of civilians and civilian infrastructure, and stressed the urgent need for humanitarian access. It reflected the ethical necessity to provide for citizens in Gaza, including with electricity, food and medical supplies. The Council response we proposed was robust and balanced, he said. Sadly, very sadly, the Council was yet again unable to adopt a resolution on the conflict, he added, saying again silence prevailed to no ones long-term interest. Hundreds of thousands of civilians in Gaza cannot wait any longer, actually they have waited for far too long, to no avail.

Mr. NEBENZIA (Russian Federation) said: We have just been witnesses once again of the hypocrisy and double standards of our American colleagues. The United States really did not want to have any solution made before the Council and because of this they had to be very obvious about their intentions today, he added. Quoting Lockheed Martin Chief Executive Officer James Taiclets statement to United States media, he said: There's no point in restraining Israel from any military actions. What is the point in the future development of our military industrial complex, which will increase GDP [gross domestic product] by at least 2percent. There are conflicts which need to be resolved with arms and we are prepared to provide these arms, these weapons. That is the very essence of United States policy in the region and the Pacific region, he said, voicing hope that international partners after todays vote will have no illusions about that and what theyre intending whatsoever.

LINDA THOMAS-GREENFIELD (United States) said that President Joseph R. Bidens trip to the region is a clear demonstration of the fact that the United States is actively engaging at the highest levels.She pointed out that her country is on the ground doing the hard work of diplomacy, emphasizing that, while she recognizes Brazils desire to move the draft resolution forward, the Council needs to let that diplomacy play out. Expressing disappointment that the draft did not mention Israels right to self-defence, she noted that, although Washington, D.C., was not able to support the text, it will continue to work on this pressing issue. When I talk about the protection of civilians, I mean all civilians, she stressed, highlighting that the United States is working to address the humanitarian crisis in Gaza. Let us all call for the protection of civilians and unequivocally condemn Hamas, she stated, urging Member States to support equal measures of justice and freedom.

VANESSA FRAZIER (Malta) noted that her delegation voted in favour of the draft tabled by Brazil and abstained on the two amendments proposed by the Russian Federation. While her delegation had no issue with the latters substance, she said it saw no reason to alter a well-crafted resolution that rested on a delicate balance and sought Council unity on this matter. Expressing regret that the text was not adopted, she said her delegation remains concerned over the highly volatile situation in Israel and Gaza.The Council must therefore work towards constructive steps that prioritize the protection of civilians and prevent any regional conflagration. Stressing the importance of rapid, unhindered humanitarian access to Gaza, she urged the immediate establishment of humanitarian corridors.Further, she called on all parties to exercise maximum restraint and comply with international law, also underlining the need for Council efforts to steadfastly align with a just, comprehensive resolution of the Middle East conflict.

ZHANG JUN (China), recalling his position articulated the night before last, said that his reaction today was one of shock. The draft proposed the night before last focused on civilian protection, to which some countries cast a negative vote, while others agreed to postpone action, leading his delegation to expect that they will vote in favour of todays text. However, he stressed: The final result is nothing short of unbelievable. He voiced disappointment that the amendments, which would have improved Brazils text, were rejected, stressing the need for the Council to take rapid action, in view of the rapid deterioration of the situation in Gaza, and the air strike on the hospital, which led to hundreds of civilian casualties.He condemned the air strike and urged Israel to abide by its obligations under international humanitarian law. The text put forth by Brazil reflects the general view of the international community and contained initial steps for a ceasefire, he said, stressing: The Council must not stand on its hands. With the escalation of violence in Gaza, civilians are paying the price with their lives, he said, calling for hostilities to cease and for the Council to play its role.

PEDRO COMISSRIO AFONSO (Mozambique) said his vote in favour of the resolution expressed his delegations concern with the outbreak of violence and deterioration of the situation in Gaza and the unfolding humanitarian crisis. We are deeply concerned about the human lives that are being lost on a daily basis since the conflict erupted, he said, adding that his delegation aligned itself with Council efforts to protect civilians and respect international human rights law, international humanitarian law and the Geneva Conventions.He called for humanitarian aid to reach Gaza, including the provision of essential goods and services and medical supplies. Ultimately, humanitarian problems need political solutions, he stressed, pointing out that this belief reflects his countrys own experience originating from its protracted struggle against colonialism, racism and apartheid in the Southern Africa region. In this context he urged all parties to stop attacks and engage in constructive dialogue, which is the only way to resolve the issues.

HAROLD ADLAI AGYEMAN (Ghana) said: The Council, as far as possible, should speak in one voice on this important dispute whose fault lines reach many distant parts of the world. His delegation voted in favour of that draft, but abstained from the draft proposed on 16October and amendments to todays resolution to preserve the broadest possible agreement that was found. Underscoring the Councils historic responsibility to deliver the two-State solution and preserve the lives of the two nations, he called on parties to de-escalate and seek consensus to support mediation efforts, and on those who can have a moderating influence on the parties to open up spaces for dialogue.

ISHIKANE KIMIHIRO (Japan) said his country voted for the resolution because it supports its main ideas, bearing in mind various perspectives, including the humanitarian situation in Gaza. Japan has unequivocally condemned the terror attacks by Hamas and others, and called for the immediate release of those who were kidnapped. At the same time, he pointed out that Japan had asked to delay the vote on this resolution proposed by Brazil, understanding that various countries, including the United States, have been carrying out diplomatic efforts on the ground to improve the situation as soon as possible. Japan expresses great regret that the resolution was brought to a vote today, nevertheless. Japan has consistently and strongly supported and put faith in diplomatic efforts by United States President Biden and other relevant countries. Japan will continue to work together with other countries to ensure the safety of civilians and realize an early de-escalation of the situation.

PASCALE CHRISTINE BAERISWYL (Switzerland), calling for an immediate release of hostages and rapid humanitarian access, said that the draft resolution met these priorities and aimed for the Councils common understanding. Underlining that, for this reason, she voted in favour of the text, she expressed regret that the 15-nation organ was unable to reach consensus on the draft resolution.

MICHEL XAVIER BIANG (Gabon) observed that this morning, the Council is seeing its credibility being put to the test. Rhetoric around the table provided no succour to the citizens of Gaza, and geopolitics have once again paralysed the organs ability to act. Noting that his delegation voted in favour of the draft resolution tabled by Brazil and the two amendments proposed, he said it did so out of the urgent, crucial need to act in the face of deadly violence that has caused immeasurable distress. He called for an immediate cessation of hostilities and the opening of humanitarian corridors to alleviate the suffering of civilians. Further, hostages must be released with no conditions or blackmail.Again expressing regret that the Council was unable to overcome its differences, he underlined the need to find a solution to the situation in the Middle East the chronic nature of which questions the organs credibility and tarnishes its reputation.

BARBARA WOODWARD (United Kingdom) noted that the text rightly condemned the appalling attacks carried out by Hamas on 7October, stressed the importance of ensuring humanitarian access and protecting civilians, while emphasizing the Councils shared priority in preventing the regional escalation of the conflict. However, the text could have been clearer on Israels inherent right to self-defence, and it ignored the fact that innocent Palestinian civilians were being used as human shields. Therefore, her delegation abstained from voting on the text, she said, reiterating her countrys support for Israel in defending itself against Hamas, in taking back hostages and strengthening long-term security. She also called on Israel to avoid harming Palestinian civilians and act in line with international humanitarian law. As well, the United Kingdom will continue to work with partners to ensure civilians are protected and have access to food, water, medicine and shelter, she said, adding it will also continue to work towards the peace promised by the two-State solution.

HERNN PREZ LOOSE (Ecuador) said his country voted in favour of the resolution as it was the result of a constructive negotiating process. The Council cannot continue in silence in the face of events which are clearly a threat to international peace and security, and which are already having serious humanitarian consequences, he said. More so, the credibility of the Council depends on its decisions at times like this. Noting that his country abstained regarding the amendments since they were elements covered in the resolution, he underscored that this is not the end of his delegations efforts to ensure that the Council can act regarding this conflict. It remains, as it has been in the past, for the great Powers related to the conflict to be guided to seek solutions to establish constructive peace and not hamper possible agreements and understandings, he stressed.

FERIT HOXHA (Albania) said his country voted in favour of the resolution because it responded to core objectives on the issue and towards a coherent and principled position. Among others, the text strongly and unequivocally condemned Hamas and its indefensible terrorist attacks on Israel on 7October, called for the immediate release of hostages and provided for protection of civilians and the flow of humanitarian aid to all those in need. While his delegation supported the draft, it also reaffirms full support of Israel and its right to self-defence, like every other nation under attack, which the resolution falls short to mention, he said.

LANA ZAKI NUSSEIBEH (United Arab Emirates), recalling that, for more than 140years Al Ahli Arab Hospital has provided medical care and shelter for Gazans, added: Each passing hour of this ruinous war makes a mockery of the principles of international humanitarian law. Noting that Gaza is laid to waste, and nobody feels safe, she called for an investigation to this incident. She also reported that more Palestinians have died in this outbreak of violence than in any other in the history of the conflict, expressing her support for a no less than a humanitarian ceasefire. Stressing that Hamas is indeed responsible for sparking this latest fire that is now engulfing the streets of the capitals around the region, she stated: Make no mistake. The kindling was already there fuelled by decades of violent dehumanization. She emphasized that she voted for the draft resolution not because it is a perfect text, but because it states basic principles.Recalling that three years ago the United Arab Emirates established diplomatic relations with Israel through the Abraham Accords, she noted that, along with Israeli and United States partners, her Government thought a new middle East where coexistence and cooperation deliver prosperity, security and peace for all.

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Security Council Fails to Adopt Resolution Calling for Humanitarian ... - United Nations

A judge ruled Monday that the Las Vegas Review-Journal does not have to take down or alter its video of Henderson corrections officers that was published as part of an investigation into excessive overtime and mistakes at the city jail.

Im not persuaded that injunctive relief is warranted, said District Judge Mark Denton, who denied the police unions demand for an injunction against the newspaper that would require it remove or modify the video.

The judges ruling pertained to the newspapers report last month that revealed taxpayers have paid millions of dollars in overtime to run the citys understaffed detention center and that corrections officers sometimes made mistakes and violated policy, records show. Exclusive jail surveillance footage and photos were posted with the story.

After the Review-Journal ran its story, the Nevada Association of Public Safety Officers sued the newspaper, claiming it broke a state law that says images of officers in the possession of a law enforcement agency are confidential. The city of Henderson has joined the lawsuit and launched an investigation into how the newspaper obtained the video.

Todays ruling was affirmation that press freedoms are enshrined in the First Amendment for an important reason: The government and public employees cant tell the media what to publish and not publish, Review-Journal Executive Editor Glenn Cook said after the ruling.

The Review-Journals chief legal officer, Benjamin Lipman, said the statute only forbids law enforcement agencies from publishing the photos not media outlets.

The judge still has to decide whether NAPSO and Henderson have legal standing to pursue the case at all. If they do, Denton will decide whether the law applies to the general public, including media, rather than just law enforcement agencies. If that is the case, he will also have to rule on whether it is unconstitutional to apply the law to a news organization, or any member of the public, that publishes lawfully obtained information, Lipman said.

Union may appeal decision

NAPSO executive director Andrew Regenbaum said the judge got it wrong and that the union would consider appealing his decision.

Its, unfortunately, shameful that the paper continues to try and turn this into a First Amendment argument when its not, he said. Nobody has asked you to change your article.

The union argues that keeping the video up without blurring officers faces puts their safety at risk but could provide no evidence of that either in court or in phone interviews.

We dont need to establish a threat or somebody acted on the threat to establish irreparable harm, said Las Vegas attorney William Schuller, who represents the union. Each time the video and or photographs are published in another article, the chances of that happening increase.

Attorney Matthew Cate, arguing on behalf of the Review-Journal, said these officers are in the public every day and do not work undercover. He also argued that the Review-Journal did nothing but receive information and publish it.

The First Amendment does not require the newspaper to rely on the government to provide information, he said.

Henderson city officials sent the Review-Journal redacted video to use after the story ran, but the newspaper has declined to alter or replace its published work as the video is important to exposing potential wrongdoing by taxpayer-paid officials. The video was obtained from a source.

During Mondays hearing, Assistant City Attorney Wade Gochnour said the parties are not infringing on the newspapers rights, adding that publishing the face of the officers is not in the public interest.

Earlier this month, Denton denied the unions demand that the Review-Journal immediately take down the video.

Contact Briana Erickson at berickson@reviewjournal.com or 702-387-5244. Follow @ByBrianaE on X. Erickson is a member of the Review-Journals investigative team, focusing on reporting that holds leaders and agencies accountable and exposes wrongdoing.

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Las Vegas judge sides with Review-Journal on First Amendment ... - Las Vegas Review-Journal

The first time Ventura City Councilmember Mike Johnson ran for office in 2020 he created two different free-standing campaign signs of the kind Ventura residents are used to seeing all over town, he said. One sign read Mike Johnson for Ventura City Council while the other stated Lets ban these signs from the public right-of-way.

Johnsons campaign against campaign signs on public property appears to be headed towards victory after the Ventura City Council voted unanimously to move ahead with the policy proposal at their Oct. 9 meeting. City ordinance currently forbids other types of signs, such as commercial advertisements, from public right-of-way areas, and the change would eliminate an exemption for political signs prior to elections.

By removing the exemption, what we are doing is simply putting the signs so that they are treated the same as all other signs, Johnson said as he presented his proposal to the council. Its important for free speech reasons that we not subject them to any additional burdens, but this would simply make one uniform sign ordinance that prohibits signs in the public right-of-way.

Johnson said he became concerned about Venturas political sign policy long before he ran for city council. About seven years ago he started picking up signs from various campaigns that were left in place after elections in violation of the citys campaign rules, which say signs must be removed within 10 days after the polls close. He said the signs can become a visual blight in the policy proposal he introduced along with Deputy Mayor Jeannette Sanchez-Palacios. Johnson also cited a 2018 Ventura County Grand Jury report that found of the five largest cities in Ventura County, Ventura was the only one that allowed campaign signs in the public right-of-way.

Johnson pointed out that the change would only apply to areas such as city-owned tree wells, sidewalks and parkways and not privately owned homes and businesses. This would not have any impact on what you could do on your own property, your own house, your own business. And personally, I would say that I think those signs are very meaningful when you know who is standing behind it, Johnson said.

During the public comment portion of the discussion, Spencer Noren, who recently was unsuccessful in his run for city council, said he was against the policy change. Do we want to open up Pandoras box on our First Amendment rights about free speech for candidates and campaigns fighting to be . . . elected officials? I mean, would everybody here please raise your hand whos on council, who used campaign signs. I think you all did, right? So wouldnt it be a little bit hypocritical to say that people in the future dont have the same opportunity to advertise in the public right-of-way signs that our small beach community can see? Noren said.

When Councilmember Bill McReynolds asked City Attorney Andy Heglund if the change would open the city up to any First Amendment challenges, Heglund replied that the current ordinance has issues of its own.

I think the problem our existing ordinance has is, its not necessarily content neutral. It does restrict certain signs and allow other signs based on content. I think this change would make our ordinance more consistent with the First Amendment, Heglund said.

The policy change that would effectively ban campaign signs from Ventura right-of-way will require approval by the Ventura Planning Commission as well as a final vote by the city council. It will also need approval by the California Coastal Commission, and city officials said its unclear if the item will be heard by the state panel before next June in order to be in place to impact the next city council election scheduled for November 2024.

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Signs of the times? Ventura considers banning campaign signs on ... - Ventura County Reporter

The freedom of expression is a First Amendment right, state Sen. Jeff Irwin (D-Ann Arbor) joked to the media after a vote on his bill SB 351 to expand protections for individuals breastfeeding to include those using a breast pump or other means to express milk.

Michigan became one of the last states to protect public breastfeeding in 2014 through bipartisan legislation called the Breastfeeding Anti Discrimination Act, which garnered widespread support in the Legislature.

The act and partnering legislation allows for breastfeeding in public spaces, whereas previously state public indecency laws didnt specifically exempt breastfeeding from indecent exposure and the corresponding criminal penalties.

However, the current law is not enough to protect infants in Michigan, Shannon McKenney Shubert, executive director of Michigan Breastfeeding Network told lawmakers in the Senate Health Policy committee on Oct. 4.

There are so many reasons why direct bodyfeeding is not always feasible or possible. I have heard countless stories of folks who absolutely must pump breastmilk, Shubert said. Human milk benefits everyone, everyone should partner and work together for the success of families to provide their babies and children with human milk in whatever way works for each family.

Shubert said 90% of families in Michigan incorporate some form of pumping in their infant feeding journey and the legislation provides opportunities to keep individuals in the workforce, limit infant mortality and increase family wellness, as well as support reclamation of traditional birthing practices for cultural communities that have been prevented from breastfeeding.

After the 26-12 vote, Irwin said he was happy to have voted while serving in the House for the 2014 legislation that created the defined right to breastfeed in public settings But he said SB 351 presents an opportunity to make good legislation better.

Breastfeeding is an important function for the mom and the baby and the idea that folks should be shamed out of public spaces for that is just wrong, Irwin said. But the one thing that we left out was pumping and expression of the milk, so I thought this was a hole that we could fill, and that we could just simply make sure that we were doing everything we could to support breastfeeding moms and their babies.

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Previously, I blogged the abstract and introduction of my new article, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, which has just been published in the Journal of Free Speech Law. It's based on my work with the Georgia Association of Club Executives v. Riley case, where we challenged a Georgia tax on adult entertainment establishments on First Amendment/free speech grounds.

In this post, I'll give you Part I, "Erotic-Expression Taxes vs. Nudity Taxes", which canvasses the different kinds of taxes in different states. (The article obviously has a lot of footnotes go to the article itself if you want to see those.)

* * *

I. Erotic-Expression Taxes vs. Nudity Taxes

A. Erotic-Expression Taxes

Several states have adopted taxes targeting adult entertainment businesses. In Georgia, for instance, the Safe Harbor/Rachel's Law Act imposes a tax, equal to $5000 or 1% of gross revenue, whichever is greater, on every "adult entertainment establishment." The covered entities include, among other categories:

any place of business or commercial establishment where alcoholic beverages of any kind are sold, possessed, or consumed wherein . . . [t]he entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation.

The money collected goes into the Safe Harbor for Sexually Exploited Children Fund, the purpose of which is to provide (among other things) "care, rehabilitative services, residential housing, health services, and social services, including establishing safe houses, to sexually exploited children."

Note a few features of this statute, which are found in some other states' statutes as well. The set of covered businesses is defined in some way that includes nudity (or substantial nudity). The set of covered businesses is further limited to those that serve or allow the consumption of alcohol. And the money collected is to be used to fund (among other things) programs related to sex crimes.

Here are a few other examples:

I'll refer to such taxes by the general label of "erotic-expression taxes." The ones listed above target not just nudity, and not just eroticism, but particular performative expressionwhether referred to generally as "entertainment" or more specifically as "dancing," and possibly also incorporating particular erotic content, for instance "specified sexual activities" or "movements of a sexual nature."

Such statutes require analysis under the First Amendment: nude dancing communicates an erotic message, and is thus expressive conduct.Indeed, when a Supreme Court plurality in Barnes v. Glen Theatre, Inc. upheld a requirement that dancers wear pasties and G-strings, it didn't rely on any theory that nude dancing was non-communicative. Rather, it wrote that such a requirement "does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic."

One may argue that nude dancing and similar activities are non-expressive or valueless and are therefore not a matter for the First Amendment, but that view would require a major change in doctrine. That these activities have been characterized as being "within the outer perimeters of the First Amendment," or "within the outer ambit of the First Amendment's protection," is irrelevant: whether outer or inner, the First Amendment still applies. In fact, as I argue below,these taxes not only require First Amendment analysis but also turn out to be unconstitutional: because they turn on what sort of content is presented, they're content-discriminatory and should therefore be analyzed under strict scrutinya standard that they fail.

B. Nudity Taxes

Other states have what I'll call "nudity taxes"the focus is still nudity and/or eroticism, but not necessarily particular expressive activity that conveys an erotic message.

The distinction between erotic-expression taxes and nudity taxes, while important, isn't necessarily very sharp. The Utah statute seems to fall more on the nudity side, because the nude services covered by the statute include not just dancing but also non-expressive activities like waitressing or massage.

One could say the same of the Illinois statute; activities could "appeal primarily to an interest in nudity or sex" without being expressive. But it's a tougher case: the inclusion of "entertainment" within the defined term, and the listing of "a striptease club" as one of the covered categories, could support an inference, based on standard methods of statutory interpretation, that the definition is meant to primarily cover expressive performances. Moreover, for both of these statutes, we need to look at the government's practice of enforcement to see whether it primarily targets expressive businesses.

Still, for purposes of this Article, the theoretical difference between a tax that targets erotic expression and a tax that targets nudity is significant. The Supreme Court has said that nudityunlike nude dancingisn't inherently expressive. A properly phrased and evenhandedly enforced nudity tax would therefore be analyzed under intermediate scrutiny. I argue that such taxes are likely unconstitutional even under this lower standard,but at least on its face the standard seems easier to meet.

C. Tax Exemptions

There are also taxes on erotic dancing that that are embedded within tax exemptions. That is, there's some general tax; there's an exemption from that tax for performances; but the exemption doesn't cover erotic dancing. So erotic dancing, unlike other performances, ends up being covered by the general tax.

For instance, the City of Chicago and Cook County had tax ordinances that taxed amusements, which they amended to provide exemptions for "live theatrical, live musical or other live cultural performances" taking place in small venues. But that category of "live ... performances" was defined to specifically exclude "performances conducted at adult entertainment cabarets," and such cabarets were defined in terms of whether topless dancers "[d]isplay or simulate the display of 'specified anatomical areas'" or "[e]ngage in, or engage in simulation of, 'specified sexual activities.'"The state of New York, similarly, taxed "place[s] of amusement," exempted "dramatic or musical arts performances," but did not include exotic dancing at an adult "juice bar" in the exemption.

These tax exemptions stand on a different footing than the taxes discussed above, because tax exemptions are subject to a different First Amendment regime than taxes. Even when a tax exemption is content-based, the Supreme Court has conceptualized tax exemptions as subsidies, and "the government can make content-based distinctions when it subsidizes speech."

Perhaps this distinction between discriminatory taxes and discriminatory tax exemptions doesn't make sense, but it's longstanding blackletter law.Perhaps it ought to be questioned, but that's beyond the scope of this Article. So I'll just note that these content-discriminatory tax exemptions exist and have been assumed to be constitutional. If tax exemptions were judged on the same basis as actual taxes, they would be subject to all the arguments I make in the rest of this Article; but I won't mention them any further.

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Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of ... - Reason