Dance/USA — The national service organization for professional dance.


November 19, 2015

A Model for Equity: Diversity and Inclusion

Lack of clarity on what diversity and inclusion mean in our current climate is a great way of not realizing either of them as a goal. Is diversity the same thing as inclusion? If we manage to create an environment of inclusion, does that mean we have d...

November 12, 2015

The Utility of the Creative Process

The average dancer leaves performing by their mid-30s, often facing the critical question: What’s next? Until recently, the answer has been all but clear. It would seem obvious that decades of intense discipline, long hours of practice and deep pa...

October 27, 2015

An Unconventional Perspective From Stables to Studios

Joanna Mendl Shaw has taught dancers for many years. But it was when she began working with horses in large-scale choreographic pieces that she gained new insights into what dance teachers should be doing in the 21st-century studio to train healthy, co...

Social Media

Dance/USA on Facebook 35 minutes

This #GivingTuesday, support the professional dance field! To evolve and grow so that we may serve the dance field the very best we can... Read More

@DanceUSAorg about 5 hours

10 simple ways to thank your employees

Dance/USA on Facebook about 9 hours

Are you shopping Cyber Monday deals today? Amazon donates to Dance/USA when you shop at AmazonSmile! Bookmark the link http://smile.ama... Read More

@DanceUSAorg about 9 hours

Shopping #CyberMonday deals today? @amazon donates to Dance/USA when you shop AmazonSmile Support dance as you shop!

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

December 27, 2012 · 2 Comments

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

By Judith Lynne Hanna

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

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

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

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

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

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

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

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

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




Be part of the conversation! We welcome and encourage feedback on eJournal articles. You are encouraged to contribute any commentary designed to spark conversation, ask questions, and/or offer constructive criticism. Please note that comments will be reviewed by Dance/USA staff prior to appearing on the site. If necessary, comments may be edited or deleted to remove any inappropriate or highly inflammatory remarks.

We accept submissions on topics relevant to the field: advocacy, artistic issues, arts policy, community building, development, employment, engagement, touring, and other topics that deal with the business of dance. We cannot publish criticism, single-company season announcements, and single-company or single artist profiles. If you have a topic that you would like to see addressed, please contact

Tags: Dance News · Features · Special Report

2 responses so far ↓

  • 1 Francine Paino // Dec 31, 2012 at 5:49 AM

    No. Dance/USA should not defend Nite Moves. A simple test of whether or not it is an art form is to ask if it would be legal to bring children under the age of 18 to such an establishment. Nite Moves is providing sexual stimulation and satisfaction to its patrons . . . period! Let's stop this pc nonsense and call a thing by its name. Perhaps everyone would be better served if prostitution and its spin-off professions were legalized and fully taxed. That would be a major help to the national deficit!
  • 2 Richard Rose // Dec 31, 2012 at 9:58 AM

    Isn't this also a threat to the world of dance in the musical theatre world as well? THE FULL MONTY comes to mind as does a host of musicals of the past. Can a conservative minded politician use this ruling to slap a tax on shows, dance or musical, that they would find offensive and want to see shut down?

Leave a Comment

Leave this field empty:

Dance/USA PhiladephiaDance/NYC