NY appeals court rules that lap dances are not art
posted at 3:44 pm on October 23, 2012 by Howard Portnoy
“Art isn’t easy,” Stephen Sondheim wrote. Sometimes it isn’t even art, a New York Court of Appeals has ruled, when the patrons of the arts it caters to wear pinky rings, sport barbershop tans, and have names like Joey Peeps and Little Vinny.
New York’s Daily News reports that the state’s highest court has rejected “an Albany-area strip joint’s claim that it should be considered exempt from sales tax because its X-rated shows constitute a ‘dramatic or musical arts performance.’”
In a 4-3 decision, the majority wrote:
Surely it was not irrational [for the state] to conclude that a club presenting performances by women gyrating on a pole to music, however artistic or athletic their practiced moves are, was also [taxable].
In practical terms, the decision means that Night Moves, the club in question, will need to pony up more than $400,000 to settle its long-standing feud with the state Tax Department.
First Amendment attorney W. Andrew McCullough appeared before the bench to argue that since other forms of artistic expression, such as ballet, are not subject to sales tax, neither should pole dancing. In opening statements in September, McCullough said, “The State of New York has no business differentiating between the Bolshoi and what we do.”
Judge Robert Smith, who authored the dissenting opinion, argued the court was being too narrow and prudish in its constraints on what it considered art. Smith was quick to add that he personally finds lap dances “distasteful,” adding:
Perhaps for similar reasons, I do not read Hustler magazine. I would rather read the New Yorker. I would be appalled however, if the state were to exact from Hustler a tax that the New Yorker did not have to pay on the ground that what appears in Hustler is insufficiently ‘cultural or artistic.’
Clearly, the judge hasn’t read New Yorker lately or he would probably have chosen another publication for his analogy.
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