August 10, 2013

If the NY sales tax exempts "dramatic or musical art performances," can it deny that exemption to strip club dancers?

The state, arguing that there's no "genuine choreographic dance performance," won in the state's highest court, but only by 4-3. The strip club, Nite Moves, is seeking U.S. Supreme Court review, saying government shouldn't be the judge of the "relative 'value' of the speech."

Once dancing counts as speech within the meaning of freedom of speech, what sense does it make to speak of a "genuine choreographic dance performance"? What is "genuineness" in dance? What does "choregraphic" mean other than "dance"? The (unlinkable) OED defines "choreography" to mean "The art of dancing." The oldest use of the word in English is:
1782   C. Burney Gen. Hist. Music II. 50   In Choregraphy, an art invented about two hundred years ago to delineate the figures and steps of dances.
Would a strip club with a more rigorously planned set of dance moves — less spontaneity — get an exemption?

23 comments:

Harold House said...

You might refer to Playford's "English Dancing Master" that predates Burney by a bit.

AaronS said...

Do these courts realise how close they are to the generals and rulers who sit and watch the North Korean extravaganzas and decide that they are of high artistic quality and thus good for the people of the country? Good for morale and patriotism?

Our tax code has made judges into adjudicators of our culture. How about a significant sales tax on everything and citizens can decide what is worthy of their tax subsidies? And dancers can be concerned about putting together a routine that communicates what they want it to communicate instead of dancing around the nonprofit maypole.

betamax3000 said...

I must admit I felt a little uneasy
When she bent down to tie the laces of my shoe
Genuinely Choreographed in Blue.

PBGolfer said...

There's much difference between skin-tight leotards and nothing at all, plus pole-dancing is taught as general exercise. I don't see how such a restriction is possible.

Bob_R said...

Is professional wrestling tax exempt in NY?

James Pawlak said...

"First we kill all the lawyers..."

whswhs said...

Why should preplanning the choreography make the difference? That seems rather like saying that a writer who reads from the pages of their novel to a live audience is entitled to freedom of speech, but a more traditional storyteller who makes up the story as they go is not. It looks to me as if both are engaged in the same art: fictional narrative.

Harold House said...

"non-profit maypole"....Tea Party anyone?

gbarto said...

This is a piece of performance art. It combines set movements and spontaneous improvisations designed to elicit the approval of the audience and to give pleasure to the performer. It is, in a sense, a physico-sexual expression of that all too human tendency for us to seek the favor of those who are watching us. The effect is a strong but artificial feeling, such as one might get from a stirring oratory. If you appreciate the performance, you may insert currency into garters of the performers, provided, of course, that you savor the irony of it all.

AustinRoth said...

It is not the fault of courts, but the legislatures that write poorly thought out and flawed laws, meant only to serve the needs of the special interests that bribed, er, sorry, contributed to their campaigns.

Unintended consequences.

Michelle Dulak Thomson said...

"Choreography," as the last two syllables suggest, is dance that is, or at least can be, notated or "fixed" somehow, so that someone else can replicate the movements of the dance. Expressive movement might easily be dance without being choreography.

That said, I'm surprised at the result; I thought it was long-settled Constitutional law that "expressive dancing" had First Amendment protection so long as it didn't run afoul of the obscenity exception. Wasn't there a Supreme Court case in the late 70s or early 80s to that effect? Fixation of choreographic works is a massive can of worms in copyright law, but surely not in First Amendment law.

cubanbob said...

It's a good thing this court ruling doesn't apply to jazz musicians. This kind of incoherent logic stems from using tax codes for things tax codes were not intended for-back door legislation-instead of merely raising revenues for government. I'm sure the Supreme Court will render yet another fine example of pretzel logic. No doubt some form of I can't define it but I know it when I see it. NY always needs more money. The simpler and easier way out of this is to simply tax ' lightly' every type of performance.

Edward Lunny said...

Well, since the state has deemed itself qualified to pick winners and losers in other venues. Why is this any surprise. It's plainly obvious that these business owners did not support the "right" political party, or provided insufficient "incentive" to those same people. Another fine example of the slippery slope of judicial determination to just whom such law applies, or not.

Mousebert said...

I've been bothered by when is it dance versus gymnastics? Fred Astaire had grace. Many of the "modern" street-type dancers I don't find graceful. They may have energy and physical prowess, like a gymnast - but others still call it dance.

Seems the trivial definition is that if a body moves to music, it's dancing. It might be bad dancing, but still dancing.

Lionheart said...

Just mimic the Rockettes but be naked.

Beldar said...

Lots of recent Fifth Circuit precedent on point, most of it originating from Houston, which is (cough) the First Amendment dramatic or musical art performance capital of the United States (for this limited purpose).

Michelle Dulak Thomson said...

This is just begging to be amalgamated with today's WSJ article about the push to make pole dancing an "Olympic-worthy sport."

Somebody said...

Where I come from the slang term for this type of performance is "Canadian ballet."

Carl said...

Goodness, the striptease is the most original and genuine form of dance there is. All other dance, from grinding at the Soph Hop to ballet at the Bolshoi, is derivative.

rcommal said...

.

rcommal said...

Once freedom of speech morphed into freedom of expression, why bother quibbling over details.

jimbino said...

Just another example of the perverse influence of religion in controlling our lives. It controls our reading material, dance, sex lives, drinking, drugs, shopping, travel and much else.

And some ask why the new atheists are so militant!

Sigivald said...

Isn't spontaneous dance also "expressive"?

Screw New York, and trying to exempt the "right" culture from taxes, but not all of it or none of it.