by Elisa Baiocco (Sapienza University, Rome; Current VHC Visiting Scholar, Emory Law)
On January 24, I had the great opportunity to attend the lecture “Taxing Nudity: Sex Work and the Constitution”, organized by the Emory Law School Centre for International and Comparative Law and given by Clinical Professor of Law Randee Waldman, Associate Professor of Law Alexander Volokh and Visiting Associate Professor of Practice John Acevedo.
The lecture revolved around the reasons behind and the critiques of the part of the 2015 Safe Harbour/Rachel’s Law Act of Georgia establishing a tax on the gross revenues of adult entertainment activities in order to finance a recovery fund for sexually exploited children, with many interesting insights that I am going to underline.
After having shed light on the possibility states have to dyadically consider sex workers as criminals or victims, Professor Waldman explained that until 2015 Georgia treated prostitutes as criminals, changing its approach through the mentioned law, that decriminalized prostitution, enhanced the criminal penalties for traffickers and created the mentioned fund for children. Then, Professor Volokh shed light on the litigation process related to the mentioned “tax on nudity”, attacked on the First Amendment freedom of speech ground. He supported the thesis that this tax is an “erotic-expression” one that discriminates between speeches on the basis of content, de facto envisioning an allowed content-related speech and a disallowed one (this latter being identified with dancing in an erotic way). In Volokh’s opinion, taxes should target sexually-exploitative commercial activities, instead of clubs where adult individuals voluntarily dance in an erotic way. Then, Professor Acevedo underlined some relevant issues related to the “tax on nudity”, such as the state’s intention to get money from the business of alcohol selling, rather than nude-dancing, since the former is the most lucrative one in strip clubs, as well as the interplay between zoning and the regulation of alcoholic beverage licenses.
In light of this, the lecture was of great interest and addressed a highly controversial issue. I hope it is the first of a series of meetings on the topic of taxing nudity, so that other approaches to the issue will be proposed and discussed. One of these should surely be the feminist one (that was missing in this lecture). Indeed, it will be interesting to analyze the feminist problematization of the “sacrality” of the freedom of expression, having its roots in the possibility that some content-related speeches (probably also the erotic-dancing one) could be harmful: nude dancers may be victims of violence in strip clubs, and the message that women (who are the majority of the dancers) are sexually at the services of men (who are the majority of strip club’s clients) may be conveyed. Moreover, it should be kept in mind that some people working in strip clubs are authentically willing to do so, but some others are not: these latter ones may be socially “forced” to do so by the absence of other earning alternatives. This could be a different-from-the-protected-speech reason to oppose the 2015 Georgia Act: taxing the work of vulnerable people without other earning opportunities would be unjust. However, since many nude dancers and sex workers certainly love their job, it will be relevant to underline a bit better, in possible future discussions, that both are not necessarily victims.