Well this is interesting! Nite Moves, A strip club in upstate New York, is in some hot water for not charging state sales tax on services provided. Like lap dances. The state is claiming Nite Moves did not appropriately apply the 8% sales tax to the $11 door charge and $20 3-min lap dance, and demanded $400,000 to make up for the loss. The club is claiming they are exempt from the taxes because what they do is art. Just like ballet.
There’s a lot going on here. First, I will say that professional pole dancers are absolutely skilled performers and athletes. There is an artistry to what they do, for sure. What the ladies at Nite Moves are doing, well, I don’t know since I haven’t been there. According to a strip club aficionado and stripper-friendly lawyer Mr. McCullough of Utah, “Nite Moves girls…work at it, and when you see the finished product, you can’t help but say, ‘These girls are good,”.
Well I will take him at his word. Let’s assume the women are the best of the bunch. Great strippers. Is what a stripper does considered ‘art’? And what would that criteria be? Since art is so very subjective, it’s really hard to say. Though the lawyers and dancers have expressed that their trade is not unlike that of ballet, we can compare the two just to illustrate some points.
I’ll start by saying that I see a large difference between professional pole dancers and your average stripper. Pole dancers aren’t removing all their clothes and practice difficult routines and choreography. Your average stripper might not even climb a pole, and dances while removing clothing for the sexual satisfaction of the viewer, solely.
To illustrate, here’s a pole dancer:
and here’s a stripper:
Now that we know the difference, let’s say we are dealing with pole dancers in this instance when comparing to ballet.
Both require exceptional strength and coordination. Choreography. Artistry. Musicality. Years of training. An understanding of emotion and emoting to the audience. But this all assumes that the strippers are equally as talented as the ballet dancers, both encompassing all these listed necessities on top of actual talent for performance. Some ballet dancers are better than others. Some strippers are better than others. All subjective. It’s a great argument for the strip club. Super persuasive if you argue it passionately, show some videos of professional pole dancers and place the focus on that rather than what the women in their club actually do.
If we think about strippers in terms of whether what they do is obscene or not, then we can clearly distinguish the ‘art’ from ‘pornography’, which have historically been separated by the Miller Test. If we go by this standard, strippers lose the battle big time. The Miller Test asks the following:
- Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Pole dancers are safe in this case. But yeah. Strippers lose this one. 100%. The entire purpose of the strip club is to appeal to prurient interests. The ‘work’ absolutely depicts sexual conduct that could be seen as offensive – rubbing a dudes engorged junk with your ass for 3-min would certainly apply to that. It’s why it is so dark in the clubs, it’s why people don’t use their real names. And lap dancing as a whole lacks literary, political and scientific value, and depending on the level of experience/skill/talent/ability of the dancer, her lap dance is not art.
And even when we apply the previous “utterly without redeeming social value” line that Miller originally had in there, which basically let everything have a passing grade with the test, I still think stripping wouldn’t pass muster. It’s porn. I don’t particularly think there is anything wrong with porn, or stripping, or pole dancing, and when done by consenting, enthusiastic, adults then great. But I don’t see an inherent redeeming social value. You can get off in a million other ways, people.
Art is a form of communication that while not strictly defined, must have limits. If not, then why isn’t football art? How would we distinguish between a tradesman and an artist? There are boundaries, even for art, and tweeking your nipples while shimmying you taint in a dudes face so he can jizz in his pants and hope his wife doesn’t notice doesn’t say anything, and involuntary bodily actions don’t count as a response.
Strip clubs like Nite Moves are easy targets for state governments looking to add some revenue, and this case seems to play into that. My argument would be that you can not charge tax on both the lap dance and the cover charge. I would argue that the cover charge for entry into the club encompasses the ‘experience’ that would be taxable, but the lap dance is entertainment within the club covered by that charge. Any exchange of money inside the club for lap dances could be considered a ‘requested donation’ for the additional entertainment, like how admission to many museums is actually a ‘voluntary donation’ at a suggested rate. Just Like A Museum. But that’s just a thought.