Critic/Scholar v. New York State — The Nite Moves Case Reaches the Highest Court, Part 2

Editor’s note: This is the second part of a two-part article concerning government taxation of strip or gentleman’s clubs. Some in the dance community believe that the rulings in this case
could have larger ramifications for dancers and creative artists. Become part of the conversation. Let us know what you think. You can catch up with part 1 here.

By Judith Lynne Hanna

On September 5, 2012, the seven-member New York Court of Appeals heard Nite Moves’ legal challenge to the Tribunal’s decision that exotic dance was not a live choreographed performance and consequently exempt from taxation as stated in law. McCullough addressed the judges. In addition, First Amendment attorney Brad Shafer submitted an amicus curiae brief for other clubs in New York in support of  Nite Moves. He argued that the Tribunal’s claim that “adult entertainment can never satisfy the Admission Charge Exception” violates the First Amendment, amounting to discrimination on the basis of content. Moreover, he elaborated how the Tribunal ignored New York State legislation and federal legislative history and case law.
At the hearing, Judge Eugene Pigott hostilely focused on the dancers paying the club a percentage of their dance fees (irrelevant to this case). He claimed the dancers lacked training and improvised, and that the club was not involved in the art business. Judge Robert Smith, however, rebutted, “I guess when I read the statute, it looks to me like ‘choreographic’ is just a synonym for dance” and “was never meant to exclude improvised dance.”

Chief Judge Jonathan Lippman pithily asked the state counsel appearing for the Commissioner of Taxation and Finance, “Is it your view that they’re making a judgment as to the worth of what’s going on there rather than looking at the evidence? … that because of the nature of what’s going on, they’re making a … moral [judgment] or just you don’t like what it is, what they do?” “You agree that the tribunal can’t act arbitrarily, right?” Judge Smith also raised this point: “But you’re really saying they weren’t dancing, or you’re just saying it wasn’t very high class dancing?” The state counsel’s argument was confused. He inappropriately introduced his own new argument and claimed that the sale of refreshments is more than merely incidental. But Judge Smith doubted that patrons came to Nite Moves for juice. McCullough summed up the hearing, “The point is that the State of New York doesn’t get to be a dance critic.”

Unfortunately, on October 23, 2012, New York’s highest court handed down a 4-3 split decision against the club in 677 New Loudon v. State of NY Tax Appeals Tribunal. The majority (Judges Ciparick, Graffeo, Pigott, and Jones) supported the taxation of admission to the stage dances and lap dance fees. “With the evident purpose of promoting cultural and artistic performances in local communities, the Legislature,” the majority asserted, “created an exemption that excluded from taxation admission charges for a discrete form of entertainment.” “The dancing at Nite Moves is not art but — like baseball games, stock-car races and ice shows — is a form of entertainment that falls within ’the broad sweep of the tax.’”

However, the dissent, written by Judge Smith (Chief Judge Lippman and Judge Read concurring) countered: “The issue is not what the legislature would have wanted to do, but what it did …” The ruling of the Tax Appeals Tribunal, which the majority upholds, “makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems.”

Furthermore, the dissent declaimed, “The people who paid these admission charges paid to see women dancing. It does not matter if the dance was artistic or crude, boring or erotic. Under New York’s Tax Law, a dance is a dance.”

The dissent challenged the Tribunal’s decision that the dancers were not artists, but mere athletes, and it “seems to have missed the point that ‘ranking’ [in difficulty] of either of gymnasts or dancers, is not the function of a tax collector.”
In addition, the dissent defended me: “[We] find the majority’s and the Tribunal’s discussions of the expert’s testimony unfair — indeed, the Tribunal’s discussion (which says the testimony came in through ‘a continuous stream of leading questions’ is simply inaccurate.”

The New York Times editorial, “A Dance Is a Dance,” came out in support of the dissent: “The state’s position amounts to discrimination on the basis of content and raises a serious First Amendment issue” (October 30, 2012, p. A26).
Having climbed a four-court legal ladder without a favorable ending, Nite Moves petitioned the appeals court to revisit this issue on November 14. Nite Moves awaits an answer. If the court refuses to reconsider its 4-3 decision against Nite Moves, the club plans to ask the U.S. Supreme Court to review the case.

Should Dance/USA support Nite Moves against government playing dance critic and deciding what is dance, choreography, and art, in addition to evaluating dance genre quality and rank? Should Dance/USA support Nite Moves against government playing dance
critic and deciding what is dance, choreography, and art, in addition to
evaluating dance genre quality and rank? In a democracy, dancers have the right to express any ideas, including sexual ones. Sexuality is in the mind of the beholder and can be read into any dance, especially given that the human body is the instrument of both dance and sex. Now exotic dance is under attack. What dance might be next?

Judith Lynne Hanna has written for many publications including The New York Times, Washington Post, Stagebill, and Dance Magazine. See www.judithhanna.com.