Bushco v. Tax Commission

2009 UT 73
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Bushco, dba Babydolls Escorts; 	No. 20070559
Valley Recreation, Inc. dba Kitty’s
Escorts and Angel’s Escorts;
The D. House, LLC dba The Doll House,
Plaintiffs and Appellants,
v.
Utah State Tax Commission; Pam
Hendrickson, R. Bruce Johnson,
D’Arcy Dixon Pignanelli, and
Mark B. Johnson (in their official
capacities as members of the 	F I L E D
Utah State Tax Commission),
Defendants and Appellees. 	November 20, 2009
---
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 040911691
Attorneys: 	W. Andrew McCullough, Midvale, for plaintiffs
Susan L. Barnum, Nancy L. Kemp, Salt Lake City, for
defendant Utah State Tax Commission
Nancy L. Kemp, Salt Lake City, for defendants Pam
Hendrickson, R. Bruce Johnson, D’Arcy Dixon
Pignanelli, and Mark B. Johnson
Marina Baginsky Lowe, Salt Lake City, for amicus
curiae ACLU Foundation of Utah
---
DURRANT, Associate Chief Justice:

1 Utah Code Ann. §§ 59-27-101 to -108 (2008).
2 Id. § 59-27-103.
3 Id. § 59-27-102(4).
No. 20070559 	2
INTRODUCTION
¶1 	In 2004, the Utah legislature enacted the Sexually
Explicit Business and Escort Service Tax 1 (the “Tax”), which
imposes a 10 percent gross receipts tax on businesses whose
employees or independent contractors (1) perform services while
nude or partially nude for thirty days or more per year, or (2)
provide companionship to another individual in exchange for
compensation. 	The revenue generated by the Tax helps fund
treatment programs for convicted sex offenders and investigations
of internet crimes against children.
¶2 	Plaintiffs, a group of escort service agencies and
erotic dancing clubs, challenge the Tax as a violation of their
First Amendment rights under the United States Constitution. 	We
hold that the statutory provisions imposing the Tax on businesses
whose employees provide services while nude are constitutional as
a content-neutral regulation of conduct that imposes de minimis
burdens on protected expression. 	However, we conclude that the
provisions applying the Tax to escort services are
unconstitutionally vague.
BACKGROUND
¶3 	The Tax creates a mechanism for taxing businesses in
which individuals perform services while nude or partially nude.
Specifically, “[a] tax is imposed on a sexually explicit business
equal to 10% of amounts paid to or charged by the sexually
explicit business for . . . (a) an admission fee; (b) a user fee;
(c) a retail sale of tangible personal property made within the
state; (d) a sale of . . . food . . .; (e) a sale of beverage;
and (f) any service.” 2 	A sexually explicit business is defined
as any business where a “nude or partially denuded” employee or
contractor “performs any service: 	(a) personally on the premises
of the sexually explicit business; (b) during at least 30
consecutive or nonconsecutive days within a calendar year” and is
paid or compensated for such service. 3 	To be “nude or partially
denuded” means that “any of the following [is] less than
completely and opaquely covered: 	(a) genitals; (b) the pubic

4 Id. § 59-27-102(3).
5 Id. § 59-27-102(2).
6 Id. § 59-27-102(1).
7 Id. § 59-27-103(2).
8 Id. § 59-27-105(4).
9 Id.
10 Id. § 59-27-105(4)(e).
3 	No. 20070559
region; or (c) a female breast below a point immediately above
the top of the areola.” 4
¶4 	The statute also provides for a tax on escort services.
An escort service is “any person who furnishes or arranges for an
escort to accompany another individual for: 	(a) companionship;
and [for:] 	(b) (i) a salary; (ii) a fee; (iii) a commission;
(iv) hire; (v) profit; or (vi) any amount similar to an amount
listed in this Subsection 2(b).” 5 	An escort is “any individual
who is available to the public for the purpose of accompanying
another individual” for compensated companionship. 6 	“[A] tax is
imposed on an escort service equal to 10% of amounts paid or
charged by the escort service for any transaction that involves
providing an escort to another individual.” 7
¶5 	The proceeds from the Tax are to be split between the
Department of Corrections, Adult Probation and Parole Division,
and the Attorney General’s office. 8 	Specifically, portions of
the proceeds are dedicated to “provide treatment services” to
individuals convicted of sex offenses, including indigent or
nonworking adults, other individuals who are subject to Adult
Probation and Parole jurisdiction, and juveniles. 9 	A portion of
the fund is also designated for a task force that “investigates
and prosecutes individuals who use the Internet to commit crimes
against children.” 10
¶6 	Plaintiffs, a group of escort service agencies and
erotic dancing clubs, initiated this action against the Utah
State Tax Commission (the “Commission”) in 2004 by filing a
complaint seeking (1) a declaratory judgment that the Tax was an
unconstitutional burden on both their right to freedom of speech
guaranteed by the First Amendment and their right to equal
protection guaranteed by the Fourteenth Amendment; and (2) a
permanent injunction against enforcement and collection of the

11 391 U.S. 367 (1968).
12 Plaintiffs have not pursued their equal protection
argument on appeal.
13 Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111-12
(Utah 1991).
14 Snyder v. Murray City Corp., 2003 UT 13, ¶ 17, 73 P.3d
325 (“[B]ecause interpreting the . . . Constitution presents a
question of law, we review the trial court’s determination for
correctness and give no deference to its legal conclusions.”);
see also Wood v. Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 7, 67
P.3d 436 (“The issue of whether a statute is constitutional is a
question of law, which we review for correctness, giving no
deference to the trial court.” (citation and internal quotations
marks omitted)).
15 Pap’s A.M. v. City of Erie, 719 A.2d 273, 275 (Pa. 1998),
rev’d, 529 U.S. 277 (2000).
No. 20070559 	4
Tax. 	Both parties moved for summary judgment. 	The district
court granted the Commission’s motion for summary judgment while
denying Plaintiffs’ motion. 	Specifically, the district court
held that the Tax did not violate Plaintiffs’ First Amendment
rights because it was constitutional under United States v.
O’Brien.11 	The court also found that the Tax did not violate the
Equal Protection Clause of the Fourteenth Amendment because the
Tax was rationally related to the legitimate government interest
in providing treatment for sex offenders. 12
¶7 	Plaintiffs timely appealed the district court’s grant
of summary judgment to this court. 	We have jurisdiction pursuant
to Utah Code section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶8 	We review a grant of summary judgment for correctness,
according no deference to the district court’s decision. 13 	The
district court’s determination that the Tax is constitutional is
also a legal conclusion that we review for correctness. 14
ANALYSIS
¶9 	In 1994, the city of Erie, Pennsylvania passed an
ordinance making public nudity a criminal offense. 15 	While the
ordinance was a simple, generally applicable prohibition of
public nudity on its face, it contained a preamble expressly

16 City of Erie v. Pap’s A.M., 529 U.S. 277, 290 (2000)
(internal quotation marks omitted).
17 Id. at 292.
18 Id. at 296, 302.
19 Id. at 289.
20 Id. at 294.
5 	No. 20070559
acknowledging that the ordinance was adopted “for the purpose of
limiting a recent increase in nude live entertainment within the
City.” 16 	Additionally, Erie’s city attorney stated that the
ordinance “was not intended to apply to ‘legitimate’ theater
productions.” 17
¶10 	When the ordinance was challenged by nude dancing clubs
as an unconstitutional burden on their First Amendment right to
engage in erotic nude dancing, the United States Supreme Court
upheld the ordinance, concluding that its predominant purpose was
to advance the city’s interest in limiting negative secondary
effects--an interest unrelated to the substantive content of nude
dancing expression. 18
¶11 	The similarities between this case and Erie are
substantial and important. 	Like the Erie ordinance, the Tax is
both generally applicable and neutral as to message. 	Also like
the Erie ordinance, the Tax was enacted, according to the record
before us, with the predominant purpose of serving an important
state interest unrelated to the substantive content of protected
expression. 	The Tax is also similar to the ordinance in Erie in
that it places only de minimis burdens on erotic nude dancing, a
type of expression lying “only within the outer ambit of the
First Amendment’s protection” 19 and “of a wholly different, and
lesser, magnitude than the interest in untrammeled political
debate.” 20 	The Tax is distinguishable from the ordinance upheld
in Erie only in its form and in the fact that the Tax is, in all
respects, less broad and less burdensome than the Erie ordinance.
¶12 	We begin our analysis by evaluating the Tax’s content
neutrality and then assess whether it passes constitutional
muster under the appropriate level of scrutiny. 	We determine
that it does. 	We next turn to the question of whether the Tax is
unconstitutionally overbroad and determine that it is not. 	We
finish by analyzing whether the statutory provisions applying the
Tax to escort services are unconstitutionally vague and conclude
that they are.

21 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(“The principal inquiry in determining content neutrality . . .
is whether the government has adopted a regulation of speech
because of disagreement with the message it conveys. 	The
government’s purpose is the controlling consideration. 	A
regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect
on some speakers or messages but not others.” (internal citation
omitted)).
22 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
448 (2002) (Kennedy, J., concurring) (“[W]hether a statute is
content neutral or content based is something that can be
determined on the face of it; if the statute describes speech by
content then it is content based.”).
23 See, e.g., City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 49 (1986) (noting that a finding that a statute’s
“predominant intent” was to limit negative secondary effects was
“more than adequate to establish that the city's pursuit of its
zoning interests here was unrelated to the suppression of free
expression”); see also Turner Broad. Sys. v. F.C.C., 512 U.S.
622, 646 (1994) (“[E]ven a regulation neutral on its face may be
content-based if its manifest purpose is to regulate speech
because of the message it conveys.”).
No. 20070559 	6
I. 	THE TAX IS CONTENT NEUTRAL BECAUSE ITS APPLICATION IS
TRIGGERED SOLELY BY CONDUCT, AND THE RECORD DOES NOT ESTABLISH
THAT IT WAS ENACTED WITH THE PREDOMINANT PURPOSE OF SUPPRESSING
PROTECTED EXPRESSION
¶13 	A regulation of speech or expressive conduct is content
neutral so long as the government interest underlying the
regulation is not related to the suppression of protected
expression. 21 	A statute is “unrelated to the suppression of
expression,” and therefore content neutral, so long as it is both
facially neutral 22 and does not have the “predominant” purpose of
suppressing protected expression. 23
¶14 	Plaintiffs’ contention that the Tax is an
unconstitutional burden on their First Amendment rights is based
primarily upon their assertion that the Tax is content based. 	We
disagree and conclude that the Tax is facially neutral because
its application is triggered without reference to the content of
any protected expression. 	Additionally, the record before us
does not establish that the Tax was enacted with the predominant
purpose of suppressing protected expression.

24 391 U.S. 367, 376 (1968) (“We cannot accept the view that
an apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea.”); see also Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 570 (1991) (“It can be argued, of course,
that almost limitless types of conduct--including appearing in
the nude in public--are ‘expressive,’ and in one sense of the
word this is true. 	People who go about in the nude in public may
be expressing something about themselves by so doing. 	But the
court rejected this expansive notion of ‘expressive conduct’ in
O’Brien . . . .”).
25 See Schultz v. City of Cumberland, 228 F.3d 831, 840-41
(7th Cir. 2000); see also City of Erie v. Pap’s A.M., 529 U.S.
277, 289 (2000) (noting that nudity is not “an inherently
expressive condition” and finding a public nudity ordinance
content neutral).
26 See, e.g., O’Brien, 391 U.S. at 376-77; see also Erie,
529 U.S. at 289.
7 	No. 20070559
A. 	The Tax Regulates Nudity, Rather Than Nude Dancing, and Is
Therefore Facially Content Neutral
¶15 	The starting point for analysis of a regulation that
impacts expressive conduct is the Supreme Court’s decision in
United States v. O’Brien, where the Court rejected the
proposition that a “limitless variety of conduct” qualifies as
speech simply because it is potentially expressive. 24 	Because
all conduct is potentially expressive, holding that each law
regulating conduct implicates the First Amendment would largely
eviscerate the distinction between conduct and speech.
¶16 	Instead, the Court has recognized that regulations of
conduct, so long as the conduct is not inherently expressive,
should be treated as content neutral if the regulations are
neutral as to message. 25 	This is so because, in order to be
content based, a regulation must classify based on the content of
protected expression. 	A regulation that classifies based on
unprotected conduct by definition does not classify based on
protected expression and therefore is not content based. 	While
regulations of unprotected conduct are still subject to First
Amendment scrutiny when they burden protected expression, 26 they
are scrutinized at a lower level since the concerns that prompt

27 Turner Broad. Sys., 512 U.S. at 641-42 (“[T]he First
Amendment, subject only to narrow and well-understood exceptions,
does not countenance governmental control over the content of
messages expressed by private individuals. 	Our precedents thus
apply the most exacting scrutiny to regulations that suppress,
disadvantage, or impose differential burdens upon speech because
of its content. 	Laws that compel speakers to utter or distribute
speech bearing a particular message are subject to the same
rigorous scrutiny. 	In contrast, regulations that are unrelated
to the content of speech are subject to an intermediate level of
scrutiny, because in most cases they pose a less substantial risk
of excising certain ideas or viewpoints from the public
dialogue.” (internal citations omitted)).
28 Erie, 529 U.S. at 289.
29 Id.
30 Id. at 292-93 (“The public nudity ban certainly has the
effect of limiting one particular means of expressing the kind of
erotic message being disseminated at Kandyland. 	But simply to
define what is being banned as the ‘message’ is to assume the
conclusion. . . . 	Although there may be cases in which banning
the means of expression so interferes with the message that it
essentially bans the message, that is not the case here.”); see
also Barnes, 501 U.S. at 571 (“[W]hile the dancing to which [the
ordinance] was applied had a communicative element, it was not
the dancing that was prohibited, but simply its being done in the
nude.”).
No. 20070559 	8
strict scrutiny are absent when conduct, rather than speech, is
the triggering factor. 27
¶17 	In this case, application of the Tax is triggered by
nudity, which the Supreme Court has specifically declared “is not
an inherently expressive condition.” 28 	Because it is not
inherently expressive, nudity is unprotected conduct rather than
protected expression. 	Accordingly, in Erie, the Court
“clarif[ied] that government restrictions on public nudity . . .
should be evaluated under the framework set forth in O’Brien for
content-neutral restrictions on symbolic speech.” 29 	The Court
rejected the argument that a ban on nudity was necessarily a ban
on the message conveyed, distinguishing nudity as a means of
expression rather than protected expression itself. 30
¶18 	Facially, at least in terms of the content-neutrality
analysis, the Tax is indistinguishable from the public nudity
ordinance upheld in Erie. 	Like that ordinance, the Tax regulates

31 The tax applies to all businesses “at which any nude or
partially denuded individual . . . performs any service . . .
personally on the premises . . . during at least 30 consecutive
or nonconsecutive days within a calendar year . . . .” 	Utah Code
Ann. § 59-27-102(4) (2008). 	It does not differentiate between
strip clubs and theaters or between escort services and artistic
modeling agencies. 	The tax applies equally to all businesses
providing nude services for the requisite period of time.
32 Turner Broad. Sys., 512 U.S. at 645 (“Our cases have
recognized that even a regulation neutral on its face may be
content-based if its manifest purpose is to regulate speech
because of the message it conveys.”); see also Ward v. Rock
Against Racism, 491 U.S. 781, 781-91 (1989) (“The principal
inquiry in determining content-neutrality . . . is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys.”).
33 See e.g., Erie, 529 U.S. at 292.
9 	No. 20070559
the condition of nudity--not just specific instances of protected
expression, like nude dancing. 31 	Also like the Erie ordinance,
the Tax applies or does not apply without reference to either
protected expression or any particular message. 	The Tax simply
cannot be facially content based because its trigger--nudity--is
not “content” since it is not protected expression. 	On its face,
therefore, the Tax is conduct based, rather than content based,
and as such is facially content neutral.
B. 	The Tax Is Also Content Neutral Because the Record Does Not
Support Plaintiffs’ Allegations That the Legislature’s
Predominant Purpose in Enacting the Tax Was to Suppress Protected
Expression
¶19 	Because the Tax is facially neutral, we must conclude
that it is content neutral unless there is other evidence in the
record establishing that the Tax, although neutral on its face,
is predominantly a covert attempt to suppress protected
expression. 32 	While facial neutrality will not save a statute
enacted with the predominant purpose of suppressing the
expression of particular viewpoints or the discussion of certain
subjects, the Supreme Court has repeatedly declined to infer an
intent to suppress protected expression on the “basis of an
alleged illicit motive.” 33 	There must be actual evidence in the

34 See City of Renton v. Playtime Theaters, Inc., 475 U.S.
41, 47-48 (1986); see also Erie, 529 U.S. at 291-92.
35 See, e.g., Hearing on H.B. 239 Before the H. Revenue &
Taxation Standing Comm. (Feb. 3, 2004) (statement of Rep. Morgan
Philpot) (“Why don’t we take a stand whether it be through some
form of task force that looks at this or just a bill that says
this should be illegal? 	Because isn’t that what we’re really
driving at here? . . . 	We’re basically saying these are social
ills. 	They’re wrong. 	But we’re not actually coming out and
saying we’re making it so, and is it because of the
constitutional nature of that challenge . . . ?”); Senate Floor
Debate, H.B. 239, 55th Utah Leg., Gen. Sess. (March 2, 2004)
(statement of Sen. Mike Dmitrich) (“[T]his is a case where we’re
trying to put these businesses out of business.”).
36 See, e.g., Hearing on H.B. 239 Before the H. Revenue &
Taxation Standing Comm. (Feb. 3, 2004) (statement of Rep. Duane
Bordeaux) (“I think, you know, to answer your question and to be
very direct, well when you talk about the [moral] argument and
are we trying to drive these out of business. 	They can open up
ten more of these businesses, that’s not my [mindset] here.
Truly, the treatment side of it, I do think there’s a
contributing aspect of it that they can help pay. 	It’s not to
drive them out of business . . . .”); Senate Floor Debate, H.B.
239, 55th Utah Leg., Gen. Sess. (March 2, 2004) (statement of
Sen. Howard Stephenson) (“We’re not moralizing here in passing
this tax. 	We’re not trying to even reduce these [businesses’]
income. 	What we’re attempting to do is fund the secondary
effects that are associated with these kinds of businesses and
these kinds of activities.”).
No. 20070559 	10
record establishing that suppression of protected expression was
the statute’s predominant purpose. 34
¶20 	We find nothing in the record before us--either the
Tax’s legislative history or in the text of the Tax itself--
establishing that the Tax was enacted with the predominant
purpose of suppressing protected expression. 	While some
individual legislators did express concern regarding whether the
Tax was intended to target nude dancing clubs, 35 the legislative
history does not establish that this was the Tax’s predominant
purpose. 	In fact, the Tax’s sponsors consistently emphasized
that the Tax was designed as a means to provide treatment for sex
offenders. 36 	As noted by the Supreme Court in O’Brien, in cases
where a facially neutral statute is alleged to be content based
because of statements found in the statute’s legislative history,

37 O’Brien, 391 U.S. at 383-84.
38 Utah Code Ann. § 59-27-102(4) (2008).
39 Erie, 529 U.S. at 296.
11 	No. 20070559
the reviewing court should be cautious in ascribing an
impermissible motive to the enacting legislature:
Inquiries into congressional motives or
purposes are a hazardous matter. 	When the
issue is simply the interpretation of
legislation, the Court will look to
statements by legislators for guidance as to
the purpose of the legislature, because the
benefit to sound decision-making in this
circumstance is thought sufficient to risk
the possibility of misreading Congress’
purpose. 	It is an entirely different matter
when we are asked to void a statute that is,
under well-settled criteria, constitutional
on its face, on the basis of what fewer than
a handful of Congressmen said about it. 	What
motivates one legislator to make a speech
about a statute is not necessarily what
motivates scores of others to enact it, and
the stakes are sufficiently high for us to
eschew guesswork. 37
The legislative record before us supports the conclusion that the
predominant reason the Tax was enacted was to provide treatment
for sex offenders, not to suppress protected expression.
¶21 	Additionally, there is nothing in the text or structure
of the Tax itself establishing that the legislature’s
predominant purpose in enacting the Tax was to suppress erotic
nude dancing. 	The Tax is generally applicable; it applies to
every business that employs nudity more than thirty days during
the calendar year, regardless of whether that business employs
nudity to convey an expressive message--erotic or otherwise. 38
Even if the burdens of the Tax, in practical effect, are likely
to fall disproportionately on nude dancing clubs, the Tax is, in
that regard, no different than the ordinance upheld in Erie. 	The
major impact of the public nudity ordinance upheld in Erie surely
fell upon businesses that employed nudity during their regular
course of business. 	Yet this likely disparate impact was
insufficient to render the ordinance content based. 39

40 Utah Code Ann. § 59-27-102(4) (2008) (defining a sexually
oriented business as one “at which any nude or partially denuded
individual . . . performs any service . . . during at least 30
consecutive or nonconsecutive days within a calendar year”).
41 Contrary to the dissent’s assertion, we have not
construed the thirty-day exemption as a balancing of interests.
We only note that this is a legitimate view of the legislative
purpose. 	And in light of this fact, we simply do not agree with
the dissent’s conclusion that the thirty-day exemption
establishes that the Tax’s predominant purpose was the
suppression of protected expression.
42 Pap’s A.M. v. City of Erie, 719 A.2d 273, 279 (Pa. 1998),
rev’d, 529 U.S. 277 (2000). 	The dissent distinguishes this case
from Erie based on the fact that the thirty-day exemption is
found in the Tax’s text rather than in the preamble. 	But this is
a distinction without a difference in the context of determining
whether the Tax is content based. 	A statute is content based if
it was enacted with the predominant purpose of suppressing
protected expression. 	Such a purpose may be divined from a
preamble just as readily as from a statute’s text.
43 Erie, 529 U.S. at 290-92.
No. 20070559 	12
¶22 	The only provision in the Tax that could be viewed as
supporting the conclusion that the Tax was enacted with an intent
to suppress erotic nude dancing is the thirty-day exemption
period. 40 	One might view this exemption as evidence that the
legislature intended to target nude dancing clubs--which are
likely to feature erotic nude dancing on a consistent basis year
round--over other businesses, such as theaters, that feature
nudity only on an irregular basis. 	But this is only one
interpretation of the purpose of the provision. 	One could also
view the thirty-day exemption period as an attempt to balance the
state interest in providing sex offender treatment against the
incidental burdens imposed on protected expression. 41
¶23 	Regardless of whether an intent to suppress protected
expression can be inferred from the thirty-day exemption period,
any such inference is certainly less strong than the express
statement found in the preamble of the Erie ordinance, which
noted that the ordinance was prompted by concerns about an
increase in nude live entertainment within the city. 42 	The
existence of this express statement in the text of the Erie
ordinance itself was an insufficient basis for the Supreme Court
to conclude that the ordinance was content based. 43

44 United States v. O’Brien, 391 U.S. 367, 377 (1968).
45 See, e.g., City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986); City of Los Angeles v. Alameda Books, Inc., 535
U.S. 425 (2002).
46 See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277
(2000) (employing O’Brien’s incidental burdens analysis); City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)
(employing secondary effects analysis).
13 	No. 20070559
¶24 	In light of the Supreme Court’s treatment of the
analogous issue in Erie, the mere possibility that a purpose of
the Tax was to target nude dancing clubs is insufficient to
render the Tax content based. 	The record before us indicates
that the Tax’s predominant purpose was providing treatment for
sex offenders, not the suppression of protected expression.
Because the Tax is facially content neutral and the record does
not establish that the legislature enacted it with the
predominant purpose of suppressing protected expression, it is a
content-neutral regulation of speech that we analyze under the
intermediate scrutiny test set out in O’Brien.
II. 	THE TAX PASSES INTERMEDIATE SCRUTINY UNDER O’BRIEN
¶25 	As a content-neutral regulation of conduct that imposes
incidental burdens on some protected expression, the Tax is
constitutional so long as it passes intermediate scrutiny under
the O’Brien test. 	Under O’Brien, a regulation of conduct is
constitutional and must be upheld so long as: 	(1) it is within
the power of the legislature to enact; (2) it furthers a
substantial government interest; (3) the government interest is
unrelated to the suppression of protected expression; and (4) any
incidental restrictions it imposes on protected expression are
not greater than is essential to further the interest. 44
¶26 	As a threshold matter, it is important to differentiate
between the O’Brien test for a regulation of conduct that imposes
incidental burdens on some protected expression and the test for
a regulation of speech that targets secondary effects. 45
Although both tests can be employed in situations that are
factually similar, 46 they are two distinct tests directed at two
different inquiries. 	The O’Brien incidental burdens test applies
to regulations of conduct that are content neutral both on their
face and as to purpose. 	The Renton secondary effects analysis
applies to regulations of speech that are content based on their
face but are asserted to be content neutral as to purpose. 	And,
in a case like this one, where the parties’ arguments implicate

47 O’Brien, 391 U.S. at 376.
48 Id.
49 See Alameda Books, 535 U.S. at 440-41 (noting that the
purposes of the secondary effects analysis are to “require[]
courts to verify that the ‘predominate concerns’ motivating the
ordinance ‘were with the secondary effects of adult [speech], and
not with the content of adult [speech]’ . . . [and to] ask
whether the municipality can demonstrate a connection between the
speech regulated by the ordinance and the secondary effects that
motivated the adoption of the ordinance.” (quoting Renton, 475
U.S. at 47)); see also R.V.S., L.L.C. v. City of Rockford, 361
F.3d 402, 407 (7th Cir. 2004) (“Whatever the label, Renton’s
second step is best conceived as an inquiry into the purpose
behind an ordinance rather than an evaluation of an ordinance’s
form.”).
No. 20070559 	14
both O’Brien and the secondary effects analyses, understanding
the distinctions between the tests is key to reaching the correct
result.
¶27 	As set forth by the Supreme Court, the intermediate
scrutiny test from O’Brien applies when the regulation at issue
regulates conduct, but the “course of conduct” to which the
regulation applies contains both “‘speech’ and ‘nonspeech’
elements.” 47 	In other words, the O’Brien test applies to
statutes that regulate conduct but that include within their
reach both expressive and nonexpressive conduct. 	The O’Brien
inquiry is directed toward determining whether “a sufficiently
important governmental interest in regulating [conduct] can
justify incidental limitations on First Amendment freedoms.” 48
¶28 	The secondary effects analysis, on the other hand, is
appropriate when the regulation at issue is content based, i.e.
is directed at speech rather than conduct, but is justified with
reference to the secondary effects associated with the speech
rather than the communicative content of the speech itself. 49
¶29 	The difference in objectives between the incidental
burdens and secondary effects analyses is readily apparent.
Whereas the O’Brien incidental burdens test is designed simply to
ensure that a neutral, nontargeted regulation of conduct does not
place impermissibly heavy burdens on protected expression, the
inquiry in secondary effects cases is directed, at least in part,
toward assessing the motive behind a facially content-based
regulation of speech. 	When a law, on its face, regulates
protected expression differently based on its content, there is a

50 Schultz v. City of Cumberland, 228 F.3d 831, 840 (7th
Cir. 2000) (“Content-based regulations by their terms distinguish
favored speech from disfavored speech on the basis of the ideas
or views expressed. 	Since it is the content of the speech that
determines whether it is within or without the [regulation], they
single out certain viewpoints or subject matter for differential
treatment. 	These regulations draw strict scrutiny because their
purpose is typically related to the suppression of free
expression and thus contrary to the First Amendment imperative
against government discrimination based on viewpoint or subject
matter.” (alteration in original) (citations and internal
quotation marks omitted)).
51 Alameda Books, 535 U.S. at 440-41.
52 Utah Const. art. XIII, § 4, cl. 1.
15 	No. 20070559
presumption that the law’s purpose is to target certain speech
based on its content or communicative impact. 50 	In such a case,
the reviewing court employs the secondary effects analysis to
ensure that the expressed interest in regulating secondary
effects is the real motivation behind the challenged statute. 51
In contrast, there is no need, when applying the incidental
burdens analysis, to evaluate the expressed interest because the
determination that the regulation does not target the content of
protected expression has already been made--by virtue of
declaring the regulation content neutral.
¶30 	Having set out the distinct purposes of the O’Brien
incidental burdens analysis and the secondary effects analysis,
and having determined that O’Brien provides the correct framework
of analysis, we now analyze whether the Tax passes intermediate
scrutiny under O’Brien.
A. 	The Tax Is Within the Legislature’s Power to Enact
¶31 	The Tax satisfies the first prong of the O’Brien
analysis because it is beyond question that the legislature has
the authority to enact a tax to raise revenue. 	The Utah State
Constitution expressly grants the legislature plenary authority
over taxation. 52 	Thus, the Tax is within the power of the
legislature to enact and meets the first prong of the O’Brien
test.

53 Compare Alameda Books, 535 U.S. at 437 (“[T]he city
certainly bears the burden of providing evidence that supports a
link between concentrations of adult operations and asserted
secondary effects . . . .”) with Erie, 529 U.S. at 298-99
(“Finally, it is worth repeating that Erie’s ordinance is on its
face a content neutral restriction that regulates conduct, not
First Amendment expression. . . . 	On this point, O’Brien is
especially instructive. 	The Court there did not require evidence
that the integrity of the Selective Service System would be
jeopardized by the knowing destruction and mutilation of draft
cards. . . . 	There was no study documenting instances of draft
card mutilation or the actual effect of such mutilation on the
Government’s asserted efficiency interests. 	But the Court
permitted Congress to take official notice, as it were, that
draft card destruction would jeopardize the system. 	The fact
that this sort of leeway is appropriate in a case involving
conduct says nothing whatsoever about its appropriateness in a
case involving actual regulation of First Amendment expression.
As we have said, so long as the regulation is unrelated to the
suppression of expression, the government generally has a freer
(continued...)
No. 20070559 	16
B. 	The Tax Furthers the Substantial State Interest of Providing
Treatment for Sex Offenders and Thereby Preventing Future
Offenses
¶32 	As to the second prong, we conclude that the Tax
furthers a substantial government interest. 	While Plaintiffs
acknowledge that providing treatment for sex offenders is an
important government interest, they claim that the Tax fails to
satisfy the second prong of the O’Brien test for two reasons:
(1) there is not sufficient evidence supporting a connection
between nude dancing establishments and sex offenders; and even
if a sufficient connection did exist, (2) the Tax impermissibly
attempts to address the “primary,” rather than “secondary,”
effects of nude dancing.
¶33 	Plaintiffs’ objections regarding the lack of
evidentiary connection are misplaced because they are based on
the requirements of the secondary effects test rather than the
O’Brien test. 	While Plaintiffs are correct in noting that the
Supreme Court, in construing the “substantial state interest”
prong under Renton and its other secondary effects cases, has
required parties seeking to justify a regulation of speech under
the secondary effects doctrine to establish some level of
evidentiary connection between the secondary effects a regulation
targets and the speech it regulates, no similar burden of proof
exists under the O’Brien test. 53

(...continued)
hand in restricting expressive conduct than it has in restricting
the written or spoken word.” (citation and internal quotation
marks omitted)).
54 See, e.g., Erie, 529 U.S. at 298-99.
55 O’Brien, 391 U.S. at 376.
56 Alameda Books, 535 U.S. at 444 (Kennedy, J., concurring)
(“Speech can produce tangible consequences: 	It can change minds.
It can prompt actions. 	These primary effects signify the power
and the necessity of free speech. 	Speech can also cause
secondary effects, however, unrelated to the impact of the speech
on its audience. 	A newspaper factory may cause pollution, and a
billboard may obstruct a view. 	These secondary consequences are
not always immune from regulation by zoning laws even though they
are produced by speech.”).
17 	No. 20070559
¶34 	As set forth above, the evidentiary connection
requirement for secondary effects regulations exists to provide
assurance that the regulation was actually motivated by the
asserted concerns over secondary effects rather than by the
content of the speech itself. 	A review of the relevant case law
shows that the second prong of the O’Brien test does not require
that the state provide evidentiary proof of a connection between
the speech it regulates and secondary effects. 54 	Instead, all
that is required is that the state show its regulation would
advance a substantial state interest. 	The requirement that the
interest be “substantial” simply ensures that the state’s
interest in adopting the legislation is sufficiently weighty to
justify the incidental burdens that the regulation may place on
some protected expression. 55
¶35 	Plaintiffs’ arguments relating to primary effects are
misplaced for a similar reason. 	The primary effects of speech
are the direct impacts that the speech has upon the listener or
viewer--such as a change in attitude or an increased motivation
to engage in certain behavior. 	The secondary effects of speech,
on the other hand, are indirect effects associated with the
speech. 	Secondary effects do not operate on the listener but on
something else, such as the neighborhood surrounding the location
where the speech occurs. 56 	Plaintiffs contend that the Tax
should be subject to strict scrutiny because the State has failed
to justify the Tax by reference to secondary effects. 	Plaintiffs
claim that the State has offered only the argument that people
who view erotic nude dancing are more likely to commit sex

57 Erie, 529 U.S. at 326 (Stevens, J., dissenting).
No. 20070559 	18
offenses. 	Plaintiffs contend that, even if the State’s assertion
is true, such an effect is a primary, rather than secondary,
effect of erotic nude dancing since it operates, if at all,
through the impact that watching erotic nude dancing has on the
viewer. 	Plaintiffs’ argument is wholly misplaced because the
distinction between primary and secondary effects of speech is
only relevant when a court is evaluating the constitutionality of
a content-based regulation of speech. 	The O’Brien analysis
assumes the evaluated regulation will impose some burden on
protected expression, which inevitably results in a burden on the
primary effects of that protected expression. 	The whole point of
the O’Brien analysis is to determine whether that burden is
acceptable in light of the government’s asserted interest in
enacting the regulation. 	Thus, even assuming that Plaintiffs’
distinction regarding primary and secondary effects is correct,
this fact is irrelevant in the context of a content-neutral
regulation of conduct, like the Tax, that is reviewed under
O’Brien.
¶36 	Finally, the mere fact that the State has referenced
secondary effects as a justification for its conduct-based Tax
does not convert the Tax from a content-neutral regulation of
conduct into a content-based regulation of speech. 	In his Erie
dissent, Justice Stevens argued that, where a government seeks to
justify a regulation of conduct based, in part, on secondary
effects, the regulation should be treated as a content-based
regulation of speech and subjected to the secondary effects
analysis:
The Court cannot have its cake and eat it
too--either Erie’s ordinance was not aimed at
speech and the Court may attempt to justify
the regulation under the incidental burdens
test, or Erie has aimed its law at the
secondary effects of speech, and the Court
can try to justify the law under that
doctrine. 	But it cannot conflate the two
with the expectation that Erie’s interests
aimed at secondary effects will be rendered
unrelated to speech by virtue of this
doctrinal polyglot. 57
The plurality rejected Justice Stevens’s argument, noting that
While the doctrinal theories behind
“incidental burdens” and “secondary effects”

58 Id. at 295.
59 The Tax specifically applies a portion of the revenue
raised to treatment of sex offenders through the Department of
Corrections. 	See Utah Code Ann. § 59-27-105 (2008).
60 Plaintiffs point out that the tax may not substantially
further the interest in treating sex offenders, but this is not
the requirement. 	O’Brien only requires that a content-neutral
regulation of conduct further the state’s substantial interest.
Erie, 529 U.S. at 301 (“To be sure, requiring dancers to wear
pasties and G-strings may not greatly reduce these secondary
effects, but O’Brien requires only that the regulation further
the interest in combating such effects.”). 	The Tax would clearly
do that here, even if the actual amount of revenue raised is
small.
19 	No. 20070559
are, of course, not identical, there is
nothing objectionable about a city passing a
general ordinance to ban public nudity (even
though such a ban may place incidental
burdens on some protected speech) and at the
same time recognizing that one specific
occurrence of public nudity--nude erotic
dancing--is particularly problematic because
it produces harmful secondary effects. 58
In other words, the mere fact that, in debating the Tax,
legislators referenced concerns with the secondary effects
associated with nudity in business does not necessarily mean--
without more--that the Tax constitutes a content-based regulation
of speech that must be justified either under the secondary
effects doctrine or traditional strict scrutiny. 	The key
consideration is whether the statute seeks to suppress speech or
regulate conduct--not whether concerns about secondary effects
played some motivational role in its enactment.
¶37 	In this case, the record supports the conclusion that
the Tax is directed toward the substantial state interest of
providing treatment for sex offenders, with the twin goals of
rehabilitation and prevention of future offenses. 	It is also
clear that the Tax furthers that interest by raising revenue that
is specifically directed toward sex offender treatment
programs. 59 	Because the Tax furthers a substantial state
interest, 60 we conclude that it satisfies the second prong of the
O’Brien test.

61 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
49 (1986) (noting that a determination that a statute’s
“‘predominate’” intent was to limit negative secondary effects
was “more than adequate to establish” that the government’s
interest was “unrelated to the suppression of free expression”);
see also Erie, 529 U.S. at 292.
62 Erie, 529 U.S. at 301 (“In any event, since this is a
content-neutral restriction, least restrictive means analysis is
not required.”); see also Ward v. Rock Against Racism, 491 U.S.
781, 798 n.6 (1989) (stating that “least-restrictive-alternative
analysis is wholly out of place” when evaluating content-neutral
regulations of speech).
No. 20070559 	20
C. 	Providing Treatment for Sex Offenders Is a Government
Interest Unrelated to the Suppression of Protected Expression
¶38 	The Tax also satisfies the third prong of the O’Brien
test--the requirement that the government interest be unrelated
to the suppression of protected expression. 	Under Supreme Court
case law, it is clear that a regulation satisfies this prong of
O’Brien so long as its predominant purpose is not the suppression
of protected expression. 61 	The record before us supports the
conclusion that the predominant government interest precipitating
passage of the Tax was the need to provide treatment for sex
offenders. 	This interest is unrelated to any attempt to suppress
speech; indeed, as set out above, any impacts on protected speech
are incidental burdens associated with the Tax’s application to a
general class of conduct.
D. 	The Tax Is Narrowly Tailored Because It Leaves Open
Alternative Means of Conveying the Erotic Message and Any Burdens
It Places on Speech Are De Minimis
¶39 	Finally, the Tax satisfies the fourth prong of the
O’Brien test as well, in that the burdens that the Tax places on
protected expression are no greater than necessary. 	Although the
Supreme Court’s use of the “no greater than necessary” language
in O’Brien appears similar to the “least restrictive means”
requirement for strict scrutiny, the Court has made clear that
this prong does not require the state to show that its chosen
means for advancing the substantial state interest is the least
restrictive means available. 62 	Instead, the fourth prong of the
O’Brien test imposes only a requirement that the regulation be
“narrowly tailored,” in the sense that it “promote[] a
substantial government interest that would be achieved less

63 United States v. Albertini, 472 U.S. 675, 689 (1985).
64 Erie, 529 U.S. at 301.
65 Id.
66 Albertini, 472 U.S. at 689.
67 Erie, 529 U.S. at 301.
68 Albertini, 472 U.S. at 689.
21 	No. 20070559
effectively absent the regulation.” 63 	De minimis impacts on
protected speech are permissible. 64
¶40 	Plaintiffs argue that the Tax fails this prong because
there are less burdensome ways of addressing the state’s interest
in providing treatment for sex offenders and that the First
Amendment requires that these methods, rather than the Tax, be
used.
¶41 	To begin with, Plaintiffs’ argument suggests that
O’Brien requires a regulation of conduct placing incidental
burdens on some protected expression to use the least restrictive
means available to serve the state’s asserted interest. 	The
Supreme Court has expressly rejected that formulation of the
O’Brien test. 65 	Additionally, Plaintiffs’ least restrictive
means argument is contrary to its own position that a general
tax--one that burdens all businesses--would satisfy First
Amendment scrutiny under O’Brien. 	A generalized tax would no
doubt inflict burdens on a greater variety of protected
expression than the Tax at issue here, and therefore would not be
the least restrictive means available. 	The Supreme Court’s cases
have made clear that the fourth prong of O’Brien is satisfied so
long as a content-neutral regulation “promotes a substantial
government interest that would be achieved less effectively
absent the regulation.” 66 	Further, de minimis impacts on
protected expression are permissible. 67
¶42 	In this case, the Tax promotes the interest in
providing treatment for sex offenders by raising revenue and
directing that revenue towards treatment programs. 	While there
may be other, less speech-restrictive means of accomplishing the
interest, the Tax is not “invalid simply because there is some
imaginable alternative that might be less burdensome on
speech.” 68 	“The validity of [content-neutral regulations of
conduct] does not turn on a judge’s agreement with the

69 Id.
70 Erie, 529 U.S. at 301.
71 Id.
72 Id. at 294.
73 Pap’s A.M. v. City of Erie, 719 A.2d 273, 275-76 (Pa.
1998), rev’d, 529 U.S. 277 (2000).
No. 20070559 	22
responsible decisionmaker concerning the most appropriate method
for promoting significant government interests.” 69
¶43 	Additionally, any burdens the Tax imposes on protected
expression are de minimis. 	Indeed, the Tax burdens protected
expression substantially less than the public nudity ordinance
upheld by the Supreme Court in Erie. 	The Erie ordinance imposed
a blanket ban on nudity in public. 	The Supreme Court noted that
the public nudity ban’s burden on nude dancing was de minimis,
since all the dancers had to do to avoid the ban was to wear G-
strings and pasties. 70 	The ordinance left nude dancers “ample
capacity to convey [their] erotic message” 71 and only limited
whatever expression that might occur “when the last stitch is
dropped.” 72
¶44 	Plaintiffs can avoid the Tax, just like the businesses
in Erie could avoid the ordinance, simply by having their erotic
dancers use G-strings and pasties. 	Additionally, the Tax places
less of a burden on protected expression than the ordinance
upheld in Erie in two ways. 	First, in contrast to the Erie
ordinance, which banned all public nudity under threat of
criminal sanctions, 73 the Tax neither prohibits public nudity nor
imposes criminal penalties--it simply imposes an additional cost
on the commercial use of nudity as a method of expression.
Secondly, the thirty-day exemption period further limits the
Tax’s burden on protected expression. 	The exemption period
allows businesses to use nudity as a means of expression for up
to thirty days each calendar year without being subject to the
Tax. 	Since the Tax’s impact on protected expression is even less
burdensome than the impact of the public nudity ordinance upheld
in Erie, we determine that the Tax satisfies the “narrow
tailoring” prong of the O’Brien test.
¶45 	We are unpersuaded by Plaintiffs’ citation to cases
such as Minneapolis Star & Tribune Co. v. Minnesota Commissioner

74 460 U.S. 575 (1983).
75 481 U.S. 221 (1987).
76 Leathers v. Medlock, 499 U.S. 439, 445-47 (1991).
77 See Leathers, 499 U.S. at 447 (stating that Minneapolis
Star and Arkansas Writers’ Project “demonstrate that differential
taxation of First Amendment speakers is constitutionally suspect
when it threatens to suppress the expression of particular ideas
or viewpoints”).
78 See, e.g., Minneapolis Star, 460 U.S. at 585.
79 Leathers, 499 U.S. at 449.
23 	No. 20070559
of Revenue 74 and Arkansas Writers’ Project, Inc. v. Ragland 75 for
the proposition that First Amendment rights may not be taxed. 	To
begin with, as set out above, the Tax is, on its face, a
regulation of conduct. 	The Tax is thus meaningfully
distinguishable from those struck down in Minneapolis Star and
Arkansas Writers’ Project, which were content-based regulations
of speech. 76
¶46 	Additionally, neither Minneapolis Star nor Arkansas
Writers’ Project actually stand for the blanket proposition that
a tax, whether general or differential, can never burden
protected First Amendment expression. 	Instead, they simply
confirm the already well-established rule that content-based
regulations of speech are presumptively unconstitutional. 77 	They
also evidence an understandable concern for regulations that
directly implicate the freedom of the press. 78 	This is made
clear by Leathers v. Medlock, in which the Supreme Court, in
distinguishing that case from Minneapolis Star and Arkansas
Writers’ Project, clarified that a tax scheme that does not
target specific ideas or viewpoints on its face, and that is not
structured or enacted in order to impose “a penalty for
particular speakers or particular ideas,” does not necessarily
run afoul of the First Amendment. 79 	As set out above, the Tax is
neither facially discriminatory nor does the record or the Tax’s
structure establish that it was enacted with the predominant
purpose of suppressing protected expression.
¶47 	Finally, the taxes in Minneapolis Star and Arkansas
Writers’ Project were sales and use taxes imposed on the
necessary materials for newspaper publishing and sales of
magazines, respectively. 	The affected publishers could not avoid
paying the taxes if they wanted to continue to operate as

80 See Minneapolis Star, 460 U.S. at 577 (large circulation
newspaper subjected to a use tax on the cost of paper and ink
products used for publication); Arkansas Writers’ Project, 481
U.S. at 224 (sales tax imposed on small group of nonexempt
magazines).
81 Erie, 529 U.S. at 292-93.
82 Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
83 Los Angeles Police Dep’t v. United Reporting Publ’g
Corp., 528 U.S. 32, 39 (1999) (“[T]he allowance of a facial
overbreadth challenge to a statute is an exception to the
traditional rule that ‘the person to whom a statute may
(continued...)
No. 20070559 	24
newspapers and magazines. 80 	In contrast, Plaintiffs, and other
erotic dancing clubs, can avoid the Tax and continue to operate
as erotic dance clubs simply by requiring their dancers to use G-
strings and pasties. 	The effect on the erotic message is
minimal. 	The Tax simply imposes a cost on using a particular
means of expression rather than on the expression itself--a
distinction that the Supreme Court has expressly acknowledged as
significant in Erie.81
¶48 	Accordingly, we conclude that the Tax is narrowly
tailored and that it satisfies the fourth prong of the O’Brien
test. 	Having determined that the Tax is a content-neutral
regulation of conduct that passes the O’Brien test, we now turn
to Plaintiffs’ argument that the tax is unconstitutionally
overbroad.
III. 	THE TAX IS NOT UNCONSTITUTIONALLY OVERBROAD BECAUSE IT DOES
NOT PROHIBIT A SUBSTANTIAL AMOUNT OF PROTECTED EXPRESSION
¶49 	In addition to arguing that the Tax is unconstitutional
under traditional First Amendment analysis, Plaintiffs contend
that the Tax is facially unconstitutional because it is
overbroad. 	The Supreme Court’s overbreadth doctrine recognizes
that a regulation that “punishes a ‘substantial’ amount of
protected speech, ‘judged in relation to the statute’s plainly
legitimate sweep,’” is unconstitutional on its face. 82 	The
overbreadth doctrine allows a plaintiff to mount a facial
challenge to a statute, even if the statute, as applied to that
plaintiff, is constitutional. 	In other words, it enables a
plaintiff to challenge a statute based on how it impacts the
rights of parties not before the court. 83

(...continued)
constitutionally be applied may not challenge that statute on the
ground that it may conceivably be applied unconstitutionally to
others in situations not before the Court.’” (quoting New York v.
Ferber, 458 U.S. 747, 767 (1982))).
84 Hicks, 539 U.S. at 119 (“We have provided this expansive
remedy out of concern that the threat of enforcement of an
overbroad law may deter or ‘chill’ constitutionally protected
speech--especially when the overbroad statute imposes criminal
sanctions. 	Many persons, rather than undertake the considerable
burden (and sometimes risk) of vindicating their rights through
case-by-case litigation, will choose simply to abstain from
protected speech.” (internal citations omitted)).
85 Id.
86 United States v. Williams, 128 S. Ct. 1830, 1838 (2008)
(internal quotation marks omitted).
87 Hicks, 539 U.S. at 119 (emphasis in original).
88 Williams, 128 S. Ct. at 1838 (internal quotation marks
omitted).
25 	No. 20070559
¶50 	The purpose of the overbreadth doctrine is to ensure
that First Amendment rights are not impermissibly chilled by an
overbroad statute. 84 	Even though the person against whom an
overbroad statute is enforced always has the right to mount an
“as applied” constitutional challenge, the Supreme Court has
justified the existence of the overbreadth doctrine on the ground
that such a person may be reluctant to assert his First Amendment
rights due to the cost of litigation and the potential for
enforcement sanctions. 85
¶51 	Nevertheless, despite its important role in providing a
remedy to ensure that First Amendment rights are not
impermissibly chilled, the overbreadth doctrine is “strong
medicine” 86 that “suffices to invalidate all enforcement of the
law,” 87 whether legitimate or not, and the Supreme Court has
cautioned against its being “casually employed.” 88 	“[T]here
comes a point at which the chilling effect of an overbroad law,
significant though it may be, cannot justify prohibiting all
enforcement of that law--particularly a law that reflects
legitimate state interests in maintaining comprehensive controls

89 Hicks, 539 U.S. at 119 (internal quotation marks
omitted).
90 Williams, 128 S. Ct. at 1838 (emphasis in original).
91 Hicks, 539 U.S. at 124.
92 Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
No. 20070559 	26
over harmful, constitutionally unprotected conduct.” 89 	The key
mechanism by which the Court has prevented overuse of the
overbreadth doctrine is “vigorous[] enforce[ment] [of] the
requirement that a statute’s overbreadth be substantial, not only
in an absolute sense, but also relative to the statute’s plainly
legitimate sweep.” 90
¶52 	The Tax, as set out above, is narrowly tailored and,
therefore, is not substantially overbroad. 	To begin with, the
Tax regulates conduct rather than expression. 	The Supreme Court
has stated that “[r]arely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically
addressed to speech or conduct necessarily associated with speech
(such as picketing or demonstrating).” 91 	As described above, the
Tax is a content-neutral regulation of noninherently expressive
conduct and therefore falls within this class of cases.
¶53 	Additionally, the Tax is narrowly drawn in that it is
directed toward a means of expression rather than expression
itself. 	It does not prohibit the expression of any message; it
simply imposes a cost on using a particular means of expressing a
viewpoint--whatever the viewpoint may be.
¶54 	Finally, the thirty-day exemption period further limits
the Tax’s impact on protected expression. 	As a result,
regardless of whether the Tax impacts protected expression in
theater productions and nude dancing clubs, its impact on
protected expression is de minimis rather than substantial. 	For
this reason, we conclude that the Tax is not unconstitutionally
overbroad.
IV. 	THE STATUTORY PROVISIONS APPLYING THE TAX TO ESCORT SERVICES
ARE UNCONSTITUTIONALLY VAGUE
¶55 	In order to be unconstitutionally vague, a statute must
either (1) fail to “give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may
act accordingly,” 92 or (2) be written in a way that encourages

93 City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
94 Id. at 57.
95 Id.
96 Id.
97 Utah Code Ann. § 59-27-102(1) (2008) (“‘Escort’ means any
individual who is available to the public for the purpose of
accompanying another individual for: 	. . . companionship[,]
. . . a salary[,] . . . a fee[,] . . . a commission[,] . . .
hire[,] . . . profit, . . . or . . . any amount similar to an
amount listed in this Subsection.”).
27 	No. 20070559
arbitrary and discriminatory enforcement. 93 	As the primary
trigger for applying the Tax to escort services, the term
“escort” is defined in the Tax in a way that fails to provide
relatively clear guidelines regarding what conduct is subject to
the Tax. 	Accordingly, we determine that the statutory provisions
applying the Tax to escort services are unconstitutionally vague.
¶56 	The escort services provisions of the Tax are vague for
the reasons enunciated by the United States Supreme Court in City
of Chicago v. Morales. 	In Morales, the Court held that an
ordinance prohibiting loitering was unconstitutionally vague when
the ordinance defined “loitering” as “remain[ing] in any one
place with no apparent purpose.” 94 	Reasoning that the City of
Chicago could not “conceivably have meant to criminalize each
instance a citizen stands in public,” 95 the Court concluded that
the ordinance was impermissibly vague because it failed to
adequately distinguish what “loitering is covered by the
ordinance and what is not.” 96
¶57 	Like the loitering ordinance in Morales, the statutory
provisions applying the Tax to escort services fail to provide a
person of ordinary intelligence guidance as to what conduct will
trigger the Tax and what conduct will not. 	The Tax defines an
“escort” as anyone who accompanies another for compensated
companionship. 97 	Nowhere does the statute define an escort in
terms of nudity. 	The statute also fails to define the term
“companionship.” 	Therefore, according to the plain terms of the
statute, individuals who are paid for providing care for the
elderly as well as those who are paid as tour guides would fall
within the definition of an “escort,” and any person or business
who employs them would be subject to the Tax.

No. 20070559 	28
¶58 	The legislature could not conceivably have intended
that companions for the elderly and tour guides would be subject
to the Sexually Explicit Business and Escort Services Tax. 	Yet,
like the ordinance struck down in Morales, the Tax fails to
provide adequate information for a person of ordinary
intelligence to distinguish between those types of compensated
companionship that the legislature intended would trigger
application of the Tax and those that it intended would not.
This ambiguity also permits arbitrary enforcement by the
Commission. 	Accordingly, we hold that the provisions of the
statute applying the Tax to escort services are
unconstitutionally vague.
CONCLUSION
¶59 	We uphold the district court’s determination that the
Tax is constitutional as a content-neutral regulation of conduct
that satisfies the O’Brien incidental burdens test. 	We also hold
that it is not unconstitutionally overbroad because it does not
prohibit a substantial amount of protected speech. 	Finally, we
determine that the statutory provisions applying the Tax to
escort services are unconstitutionally vague.
---
¶60 	Justice Wilkins, Justice Parrish, and Judge Orme concur
in Associate Chief Justice Durrant’s opinion.
¶61 	Justice Nehring does not participate herein; Court of
Appeals Judge Gregory K. Orme sat.
---
DURHAM, Chief Justice, dissenting in part and concurring in part:
¶62 	I respectfully dissent in part and concur in part. 	I
agree with the majority’s analysis in Part IV that the escort and
companionship provisions of the Sexually Explicit Business and
Escort Service Tax (the Tax) are unconstitutionally vague. 	I,
however, do not agree with the majority’s conclusion that the Tax
is content neutral and thus subject to intermediate scrutiny.
¶63 	Despite the majority’s efforts to demonstrate
otherwise, this case is not the same as Erie. 	Rather, the Utah
Legislature has enacted a statute that, by its own terms, makes
it a content-based tax on First Amendment expressive speech;
hence strict scrutiny should apply. 	Because the Utah State Tax
Commission (the Commission) cannot show that the Tax is necessary

29 	No. 20070559
to serve a compelling state interest and is narrowly tailored to
that end, I would hold that the Tax violates the First Amendment
to the United States Constitution.
I. 	UNLIKE THE ORDINANCE IN ERIE, THE STATUTE BY ITS
OWN TERMS STRATEGICALLY TAXES PROTECTED EXPRESSION
AND IS THEREFORE A CONTENT-BASED TAX
¶64 	The Tax imposes a ten percent gross receipts tax on
sexually explicit businesses. 	Utah Code Ann. § 59-27-103 (2008).
It defines a sexually explicit business as “a business at which
any nude or partially denuded individual . . . performs any
service . . . on the premises of the sexually explicit business
. . . during at least 30 consecutive or nonconsecutive days
within a calendar year” for profit or compensation. 	Id. § 59-27-
102(4).
¶65 	Both parties agree that the nudity at issue, nude
dancing, is afforded some First Amendment protection. 	Plaintiffs
argue that the Tax is a content-based burden subject to strict
scrutiny. 	The Commission contends that the Tax is aimed at
secondary effects and is thus subject to intermediate scrutiny.
Plaintiffs are correct.
¶66 	The First Amendment to the United States Constitution
protects artistic expression, which includes nude dancing. 	In
Barnes v. Glen Theatre, Inc., the Supreme Court of the United
States concluded, by way of plurality, that nude dancing is
entitled to some level of First Amendment protection. 	501 U.S.
560, 566 (1991) (Rehnquist, C.J., O’Connor, J., and Kennedy, J.,
plurality) (“[N]ude dancing of the kind sought to be performed
here is expressive conduct within the outer perimeters of the
First Amendment . . . .”); id. at 581 (Souter, J., concurring)
(“[A]n interest in freely engaging in the nude dancing at issue
here is subject to a degree of First Amendment protection.”); id.
at 592 (White, J., Marshall, J., Blackmun, J., and Stevens J.,
dissenting) (“The nudity is itself an expressive component of the
dance . . . .”).
¶67 	This First Amendment protection of nude dancing is
clear. 	It does not dissipate in the face of majority opinion or
government decree. 	See United States v. Playboy Entm’t Group,
529 U.S. 803, 818 (2000). 	Nor is it lessened because the
expression is “not very important,” “shabby, offensive, or even
ugly.” 	Id. at 826. 	Indeed, “[i]f there is a bedrock principle
underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds

No. 20070559 	30
the idea itself offensive or disagreeable.” 	Texas v. Johnson,
491 U.S. 397, 414 (1989).
¶68 	Because nude dancing is protected expression, a
regulation that burdens such expression by reference to its
content is a content-based regulation. 	See R.A.V. v. City of St.
Paul, 505 U.S. 377, 382 (1992). 	For example, in Playboy
Entertainment, the Court evaluated a statute designed to restrict
children’s viewing of sexually explicit programming. 	529 U.S. at
806-10. 	The Court determined that “[t]he speech in question is
defined by its content; and the statute which seeks to restrict
it is content-based.” 	529 U.S. at 811. 	The statute “is not
justified without reference to the content of the regulated
speech.” 	Id. (internal quotation marks omitted). 	“It focuses
only on the content of the speech and the direct impact that
speech has on its listeners.” 	Id. (internal quotation marks
omitted).
¶69 	The Tax is a content-based regulation. 	It applies
solely based on the narrow content of the business activity,
namely, whether it involves nudity. 	While the Commission argues
that the Tax could be applied conceptually to any type of
business, this purported expansive reach does not make it content
neutral. 	Just the opposite is true: it applies to exotic dancing
but not to traditional ballet, an art exhibit, or a theatrical
performance. 	In short, it is the content of expression that
triggers the Tax.
¶70 	Further, the Tax cannot be considered content neutral
in spite of the majority’s heavy reliance on City of Erie v.
Pap’s A.M., 529 U.S. 277 (2000). 	While the plurality in that
case found the ordinance banning all public nudity to be content
neutral, it did so according to the general applicability of the
terms of the ordinance. 	Id. at 290; id. at 307-08 (Scalia, J.,
concurring). 	That ordinance, “[b]y its terms . . . regulates
conduct alone. 	It does not target nudity that contains an erotic
message; rather, it bans all public nudity, regardless of whether
that nudity is accompanied by expressive activity.” 	Id. at 290
(emphases added).
¶71 	The Tax, in contrast, by its terms, creates a strategic
burden by limiting its application to those “sexually explicit
businesses” at which nude or partially nude employees perform
“during at least 30 consecutive or nonconsecutive days within a
calendar year.” 	Utah Code Ann. § 59-27-102(4)(b) (2008).
Meanwhile, other businesses, such as theaters, art galleries, or
dance companies, are allowed to continue their expressive
activity without disruption.

31 	No. 20070559
¶72 	The majority discounts this thirty-day trigger as
analogous to the preamble in Erie, which Chief Justice Rehnquist,
Justice O’Connor, Justice Kennedy, and Justice Breyer regarded as
the mere expression of the city council without any legal effect
and which could be construed to combat the negative secondary
effects listed within the preamble. 	See 529 U.S. at 290-91. 	But
here it is the text of the law itself, not a preamble, that
contains the thirty-day limitation and thereby, as its title and
terms indicate, targets “sexually explicit businesses.” 	And,
despite the majority’s attempt to characterize this case as a
carbon copy of Erie, there is no other reasonable interpretation
of the thirty-day limitation. 	Unlike the preamble in Erie, the
text of the law does not identify any secondary effects nor does
it support, as the majority construes it, a balancing of “the
state interest in providing sex offender treatment against the
incidental burdens imposed on protected expression.” 	Therefore,
this case is not like Erie, where “[t]here [was] no basis for the
contention that the ordinance d[id] not apply to nudity in
theatrical productions such as Equus or Hair” because the
ordinance’s “text contain[ed] no such limitation.” 	Id. at 308
(Scalia, J., concurring). 	Rather, the thirty-day limitation
found in the text of the Tax makes it a content-based tax.
¶73 	Indeed, if the Tax were truly content neutral, it would
resemble the tax analyzed by the Colorado Court of Appeals in
Cinamerica Theatres, L.P. v. City of Boulder, 50 P.3d 921 (Colo.
Ct. App. 2002). 	That tax “applies to all places or events . . .
regardless whether the activity involves protected speech and
regardless of content,” and taxes businesses and events “as
diverse as Broadway-style dinner theater, live striptease and
nude dancing, music concerts and live performances, theatrical
performances, radio shows, ballet performances, dance parties,
fundraising events, bars and nightclubs, and foot races.” 	Id. at
926, 928-29. 	Such a tax “does not affect a limited range of
views and does not threaten to suppress the expression of
particular ideas or viewpoints.” 	Id. at 929. (internal quotation
marks and alteration omitted).
¶74 	Instead, the Tax before us treats businesses
differently in reference to the content of the expression
involved and does so under the guise of a thirty-day
“limitation,” or in other words, a de facto exemption for the
more accepted forms of expression involving nudity. 	As Justice
Kennedy explained in his concurrence in City of Los Angeles v.
Alameda Books, Inc., “[T]he ordinance in Renton treat[ed]
theaters that specialize in adult films differently from other
kinds of theaters. 	The fiction that this sort of ordinance is

No. 20070559 	32
content neutral--or ‘content neutral’--is perhaps more confusing
than helpful. . . . 	These ordinances are content based and we
should call them so.” 	535 U.S. 425, 448 (2002) (second
alteration in original) (internal quotation marks and citations
omitted).
¶75 	Therefore, despite the majority’s analysis of the Tax
under Erie, and without resort to the statements made by
legislators in enacting the Tax, the Tax is not one of general
applicability that regulates conduct alone. 	Rather, the Tax, by
its terms, targets sexually explicit businesses that feature for
thirty or more days per year the constitutionally protected
expressive activity of nude dancing. 	Because it does so, I would
hold that the Tax is content based and thus subject to strict
scrutiny.
II. 	THE SECONDARY EFFECTS DOCTRINE DOES NOT APPLY TO
SAVE THE CONTENT-BASED TAX FROM STRICT SCRUTINY
¶76 	Because the Tax regulates expression “based on its
content, it must be narrowly tailored to promote a compelling
Government interest.” 	United States v. Playboy Entm’t Group, 529
U.S. 803, 813 (2000). 	The Commission, however, argues that the
Tax’s constitutionality should be evaluated under intermediate
scrutiny because it regulates based on negative secondary
effects. 	However, the doctrine of secondary effects does not
apply. 	The sole secondary effect the Commission identifies is
sex offenses. 	This effect, however, lacks any empirical,
reasonable connection to the viewing of nudity, which
consequently makes the Tax a reaction to a primary effect.
¶77 	Used as a time, place, and manner restriction on
speech, the secondary effects doctrine has been invoked to uphold
both the zoning and prohibition of nude dancing. 	See City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47 (1986). 	In
applying the secondary effects doctrine, a court must verify that
(1) “‘the predominate concerns’ motivating the ordinance ‘were
with the secondary effects of adult [speech], and not with the
content of adult [speech],” and that (2) “a connection [exists]
between the speech regulated by the ordinance and the secondary
effects that motivated the adoption of the ordinance.” 	City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440-41 (2002)
(quoting Renton, 475 U.S. at 47). 	The burden of proving
secondary effects lies with the government. 	Doctor John’s v.
Wahlen, 542 F.3d 787, 789 (10th Cir. 2008). 	Examples of
secondary effects include, “providing an atmosphere conducive to
violence, sexual harassment, public intoxication, prostitution,
the spread of sexually transmitted diseases and other deleterious

1 Although I recognize that “[t]he First Amendment does not
require a city, before enacting such an ordinance, to conduct new
studies or produce evidence independent of that already generated
(continued...)
33 	No. 20070559
effects,” Erie, 529 U.S. at 290; “effects . . . on the
surrounding community, namely . . . crime rates, property values,
and the quality of the city’s neighborhoods,” Alameda Books, 535
U.S. at 434; and “unsanitary conditions, unlawful sexual
activity, and the transmission of sexually transmitted diseases,”
Heideman v. S. Salt Lake City, 165 Fed. App’x 627, 631 (10th Cir.
2006).
¶78 	Despite the Commission’s arguments to the contrary, it
has failed to identify any secondary effect that the Tax is
designed to regulate. 	There is no concern about property values,
crime, prostitution, sexually transmitted diseases, public
intoxication, or other secondary effects in the neighborhoods
surrounding the businesses. 	All the Commission argues is the
effect on sex offenders “in general,” without the benefit of any
data identifying or establishing such effects. 	Moreover, the
Commission does not claim that the sex offenders’ crimes were
connected in some way to the neighborhoods surrounding the
businesses being taxed.
¶79 	In Ashcroft v. Free Speech Coalition, the Supreme Court
of the United States considered the constitutionality of a
prohibition on virtual images of child pornography. 	535 U.S. 234
(2002). 	The government had provided some evidence that
individuals who view such child pornography may be predators.
Id. at 253. 	The Court held that “[t]he Government has shown no
more than a remote connection between speech that might encourage
thoughts or impulses and any resulting child abuse. 	Without a
significantly stronger, more direct connection, the Government
may not prohibit speech on the ground that it may encourage
pedophiles to engage in illegal conduct.” 	Id. at 253–54.
¶80 	As in Ashcroft, no more than a remote connection has
been shown here. 	The connection identified by the Utah
Legislature is that the viewing of nudity leads to the
perpetration of sex offenses, and thus a tax on nudity (and the
incorporated expression of nude dancing) is justified to raise
funds for sex offender treatment. 	The legislature failed to
identify any evidence of cause and effect.
¶81 	By anecdote and assumption, the legislature concluded
that perhaps one-half of sex offenders may patronize sexually
explicit businesses and escort services. 1 	This remote connection

1 (...continued)
by other cities, . . . whatever evidence the city relies upon
[must be] reasonably believed to be relevant to the problem
. . . .” 	City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
51-52 (1986) (emphasis added). 	It also requires something more
than “shoddy data or reasoning” to “fairly support the
[government’s] rationale for its ordinance.” City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 438 (2002) (plurality
opinion). 	That is not the case here. 	See, e.g., Senate Floor
Debate, H.B. 239, 55th Utah Leg., Gen. Sess. (March 2, 2004)
(statement of Sen. Howard Stephenson) (explaining that from his
understanding, “While most individuals who use sexually oriented
businesses do not commit sex crimes, much, like most people who
smoke don’t get lung cancer, . . . there is a link between
smoking and lung cancer for those who do and there is also a link
in this for some.”); Hearing on H.B. 239 Before the H. Revenue &
Taxation Standing Comm. (Feb. 19, 2004) (statement of Att’y Gen.
Mark Shurtleff) (recounting his office’s experiences with the
Internet Crimes Against Children Task Force that an individual
traveled from Pennsylvania to Utah to “try and have sex with a 13
year-old girl,” and the individual had admitted “to a lifetime
full of [being an] Internet predator using chat rooms, hurting
children, attending peep shows, [and] going to Pennsylvania [for]
these other types [of] sexually explicit and oriented
businesses”); Hearing on H.B. 230 Before the H. Revenue &
Taxation Standing Comm. (Feb. 3, 2004) (statement of Kathy Ockey)
(“I can give you anecdotal information based on my experience
[with the Department of Corrections], but not statistics, and my
experience is I would guess about half of the sex offenders I
have dealt with over the last 18 years [are patrons of the escort
services]”).
No. 20070559 	34
causes the Tax to fall within the suspected primary effect of a
tax on the form of expression, rather than on any impact to the
immediate locale of the taxed businesses. 	Aside from absence of
any evidence of cause and effect, even if we were to assume that
there are individuals who would attend a nude dancing performance
and would commit a sex crime because of what they viewed, under
Ashcroft those crimes would constitute a primary effect, not a
secondary one. 	Because of this remote connection and lack of
secondary effects, “the lesser scrutiny . . . has no application
to the content-based regulations targeting the primary effects of
protected speech.” 	Playboy Entm’t, 529 U.S. at 815. 	Thus the
Tax must be evaluated under strict scrutiny.

35 	No. 20070559
III. 	THE TAX FAILS STRICT SCRUTINY
¶82 	“[A] tax will trigger heightened scrutiny under the
First Amendment if it discriminates on the basis of the content
of taxpayer speech [or expression].” 	Leathers v. Medlock, 499
U.S. 439, 447 (1991). 	Content-based regulations are
presumptively invalid and subject to strict scrutiny. 	City of
Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002).
And “[i]t is rare that a regulation restricting speech because of
its content will ever be permissible.” 	United States v. Playboy
Entm’t Group, 529 U.S. 803, 818 (2000).
¶83 	Under strict scrutiny, the “State must show that its
regulation is necessary to serve a compelling state interest and
is narrowly drawn to achieve that end.” 	Ark. Writers’ Project,
Inc. v. Ragland, 481 U.S. 221, 231 (1987). 	Moreover, “[i]t is of
no moment that the statute does not impose a complete
prohibition. 	The distinction between laws burdening and laws
banning speech is but a matter of degree. 	The Government’s
content-based burdens must satisfy the same rigorous scrutiny as
its content-based bans.” 	Playboy Entm’t, 529 U.S. at 812. 	This
holds especially true where “[a] power to tax differentially, as
opposed to a power to tax generally, gives a government a
powerful weapon against the taxpayer selected.” 	Ark. Writers’
Project, 481 U.S. at 228 (quoting Minneapolis Star & Tribune Co.
v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983)).
¶84 	The Tax fails strict scrutiny. 	While the State has an
interest in raising revenue to fund the treatment of sex
offenders, it is not in the category of government interest so
compelling as to burden constitutionally protected rights. 	Even
if it were, the Commission has failed to demonstrate any factual
or empirical connection between the expressive activity taxed and
the need for sex offender treatment.
¶85 	Further, even if a compelling interest existed, the
statute is not narrowly tailored to achieve that interest. 	As
noted above, the legislature failed to identify any cause and
effect between sex offenders and nude performances. 	For example,
the legislature heard the testimony of Kathy Ockey of the
Department of Corrections regarding a study by Hanson and
Brussiere, which demonstrated that having a paraphilia was the
third top indicator of being a sex offender. 	A paraphilia was
defined as an unusual, obsessive sexual interest, such as women’s
shoes or feathers. 	The legislature did not choose to tax women’s
shoes or feathers to provide funding for sex offenders. 	The only
other testimony offered was an anecdotal report, unsupported by
data, that perhaps 50 percent of sex offenders may frequent

2 Because the Tax on sexually explicit businesses is
unconstitutional under the First Amendment, I would not address
the Plaintiffs’ argument that the statute is unconstitutional
under the Fourteenth Amendment or that the statute is overbroad.
No. 20070559 	36
sexually explicit businesses and escort services. 	However, sex
offenders may also frequent restaurants, hair dressers, amusement
parks, tennis clubs, and gasoline stations. 	Attendance or use of
these services does not cause individuals to become sex
offenders, and no evidence was provided that attendance or use of
sexually explicit businesses and escort services cause
individuals to become sex offenders. 	In short, the legislature
failed to identify any cause and effect between sex offenders and
nude dancing; without doing so, it cannot narrowly tailor its
regulation.
¶86 	Raising money for sex offender treatment is a worthy
goal. 	Nonetheless, the legislature cannot unconstitutionally tax
protected speech to obtain the money. 	The State has not
demonstrated it has a compelling reason to tax this speech. 	Even
if it had a compelling interest, the Tax is not narrowly tailored
to achieve the interest. 	Therefore, the Tax is an
unconstitutional burden on First Amendment protections. 2
CONCLUSION
¶87 	The Tax by its own terms is a content-based tax. 	It is
not a tax of general applicability. 	It is not a tax motivated
and justified by secondary effects. 	The majority’s resort to
Erie does not convince me otherwise. 	Because the Tax is content
based, I would subject it to strict scrutiny and consequently
hold that it is unconstitutional under the First Amendment to the
United States Constitution.
---