Monday, October 29, 2012


A few weeks ago, a colleague and I navigated to the live stream that the New York Court of Appeals, the highest court in the state, broadcasts each day that it has oral argument. The argument in question was certainly one that appealed to our prurient interests.  The question presented to the court:  Whether private lap dances in a strip club are artistic performances, such that they are exempt from sales tax.

It was genuinely a fascinating debate.  Seriously, more so than just for the giggling at hearing the Justices debate the finer points of whether or not lap dances are art, or choreographed, or whatever. I do think it ties into an interesting deeper question about what you think the women who work there do. It is easy to be dismissive of this work, and the performances, but it does take skill, training, and flair.

Last week the Court of Appeals handed down its decision.  The court was split 4-3, but the majority found that the private dances were not exempt from the sales tax. That is, they were not artistic performances, with choreographic elements. 

A few points of interest:
  1. I have to say, from a lawyering point of view, the evidence presented seemed to open the door for the Court of Appeals to find against the night club.  They had an expert's report that went into detail regarding the choreographed, expert moves of the women in the nightclub.  But that report made no mention of what happened in the private rooms, and the Court latched onto that. Although I don't think the outcome would have been different, I think the majority would have found itself in a much harder position to hold against the strip club if it had presented evidence of the dance and performances that took place in the private rooms. As it was, the Court was given a slowish ball straight up the middle, and took advantage of that (baseball metaphor for you all). 
  2. The dissent has a piece of reasoning toward the end that I find persuasive; basically, that it was distaste for the appeal of the performances, rather than the skill and its content, that led to the club having to pay tax.  I think this section is particularly nicely written (albeit I don't buy the disapproval, necessarily):
    Like the majority and the Tribunal, I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently "cultural and artistic." That sort of discrimination on the basis of
    content would surely be unconstitutional. It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.
  3. Whether or not you agree with the outcome, one thing that I found genuinely distasteful about this whole shebang was that the male attorneys and those male justices on the court repeatedly referred to the women who work in the club as "girls."  Occasionally, if one were lucky, one would hear "dancer."  But, otherwise, it was "girls." I might even have taken a "lady" reference, but did not have to make that decision.  Just girls. 

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