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 serutiny.
1 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 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
I 64 The Tax imposes a ten percent gross receipts tax on sexually explicit businesses. Utah Code Ann. § 59-27-1083 (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 80 consecutive or nonconsecutive days within a calendar year" for profit or compensation. Id. § 59-27-102(4).
T 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.
T 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, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Rebnquist, C.J., 0'Con-nor, J., and Kennedy, J., plurality) ("[Nlude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment ...."); id. at 581, 111 S.Ct. 2456 (Souter, J., concurring) ("[Aln interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection."); 1d. at 592, 111 S.Ct. 2456 (White, J., Marshall, J., Blackmun, J., and Stevens J., dissenting) ("The nudity is itself an expressive component of the dance. ...").
167 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, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Nor is it lessened because the expression is "not very important," "shabby, offensive, or even ugly." Id. at 826, 120 S.Ct. 1878. Indeed, "[1lf 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 the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2588, 105 L.Ed.2d 342 (1989).
*173168 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, 112 S.Ct. 2538, 120 L.Ed.2d 305 (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, 120 S.Ct. 1878. The Court determined that "[the speech in question is defined by its content; and the statute which seeks to restrict it is content-based." 529 U.S. at 811, 120 S.Ct. 1878. 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).
T 69 The Tax is a content-based regulation. Tt 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.
170 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, 120 S.Ct. 1882, 146 L.Ed.2d 265 (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, 120 S.Ct. 1882; id. at 807-08, 120 S.Ct. 1882 (Scalia, J., concurring). That ordinance, "(bly its terms ... regulates conduct alone. Ft does not target nudity that contains am erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity." Id. at 290, 120 S.Ct. 1882 (emphases added). T71 The Tax, in contrast, by its terms, creates a strategie 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.
172 The majority discounts this thirty-day trigger as analogous to the preamble in Brig, 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, 120 S.Ct. 1382. 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 Brie, 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 "(there [was] no basis for the contention that the ordinance did] not apply to nudity in theatrical productions such as Equus or Hair" because the ordinance's "text con-tainled] no such limitation." Id. at 308, 120 S.Ct. 1882 (Scalia, J., concurring). Rather, the thirty-day limitation found in the text of the Tax makes it a content-based tax.
T 73 Indeed, if the Tax were truly content neutral, it would resemble the tax analyzed by the Colorado Court of Appeals in Cinamerica Theatres, LP. 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 *174shows, 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).
T 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. Alaome-da Books, Inc., "[The ordinance in Renton treatled] theaters that specialize in adult films differently from other kinds of theaters. The fiction that this sort of ordinance is 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, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (second alteration in original) (internal quotation marks and citations omitted).
I 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 serutiny.
II. THE SECONDARY EFFECTS DOCTRINE DOES NOT APPLY TO SAVE THE CONTENT-BASED TAX FROM STRICT SCRUTINY
T 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 Enim't Group, 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The Commission, however, argues that the Tax's constitutionality should be evaluated under intermediate seru-tiny 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.
T77 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, 106 S.Ct. 925, 89 L.Ed.2d 29 (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 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, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (quoting Renton, 475 U.S. at 47, 106 S.Ct. 925). The burden of proving see-ondary effects lies with the government. Doctor John's v. Wahien, 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 effects," Erie, 529 U.S. at 290, 120 S.Ct. 1382; "effects ... on the surrounding community, namely ... crime rates, property values, and the quality of the city's neighborhoods," Alameda Books, 585 U.S. at 484, 122 S.Ct. 1728; and "unsanitary conditions, unlawful sexual activity, and the transmission of sexually transmitted diseases," Heideman v. S. Salt Lake City, 165 Fed.Appx. 627, 631 (10th Cir.2006).
T78 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 Commis*175sion 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.
T 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, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The government had provided some evidence that individuals who view such child pornography may be predators. Id. at 253, 122 S.Ct. 1389. The Court held that "[the 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, 122 S.Ct. 1389.
1 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.
1 81 By aneedote and assumption, the legislature concluded that perhaps one-half of sex offenders may patronize sexually explicit businesses and escort services.1 This remote connection 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 erimes 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, 120 S.Ct. 1878. Thus the Tax must be evaluated under strict serutiny.
III THE TAX FAILS STRICT SCRUTINY
'I 82 "[A] tax will trigger heightened seruti-ny 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, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). Content-based regulations are presumptively invalid and subject to strict scrutiny. City of Los Amgeles v. *176Alameda Books, Inc., 535 U.S. 425, 434, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). And "Ht is rare that a regulation restricting speech because of its content will ever be permissible." United States v. Playboy Enim't Group, 529 U.S. 803, 818, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
T 83 Under strict serutiny, 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, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). Moreover, "[ilt 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 seru-tiny as its content-based bans." Playboy Entm't, 529 U.S. at 812, 120 S.Ct. 1878. 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, 107 S.Ct. 1722 (quoting Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 585, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983)).
184 The Tax fails strict serutiny. 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 paraphi-lia 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 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 dance-ing; without doing so, it cannot narrowly tailor its regulation.
1 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
1 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, I1 would subject it to strict serutiny and consequently hold that it is unconstitutional under the First Amendment to the United States Constitution.
. Although I recognize that "[the First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated 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, 106 S.Ct. 925, 89 LEd.2d 29 (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, 122 S.Ct. 1728, 152 L.Ed.2d 670 (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]").
. 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 over-broad.