SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0429-PR
Appellant, )
) Court of Appeals
) Division One
) Nos. 1 CA-CR 06-0874
v. ) 1 CA-CR 06-0877
) (Consolidated)
)
) Maricopa County
HUBERT AUGUST STUMMER and ) Superior Court
DENNIS ALLEN LUMM, ) Nos. CR2006-006957-001 DT
) CR2006-006958-001 DT
Appellees. )
_________________________________ ) O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable James H. Keppel, Judge
VACATED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
217 Ariz. 188, 171 P.3d 1229 (App. 2007)
VACATED
________________________________________________________________
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By James P. Beene, Appeals Bureau Chief
And
LAW OFFICE OF SCOTT E. BOEHM, P.C. Phoenix
By Scott E. Boehm
Attorneys for State of Arizona
RICHARD J. HERTZBERG ATTORNEY AT LAW Phoenix
By Richard J. Hertzberg
Attorneys for Hubert August Stummer and Dennis Allen Lumm
THE CENTER FOR ARIZONA POLICY Phoenix
By Cathi W. Herrod
Peter A. Gentala
Deborah M. Sheasby
Attorneys for Amicus Curiae The Center for Arizona Policy
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 Petitioners Hubert August Stummer and Dennis Allen Lumm
were charged with violating Arizona Revised Statutes (“A.R.S.”)
section 13-1422 (2005), which forbids adult bookstores from
remaining open during certain early morning hours. We have been
asked to determine whether the hours of operation provision of
§ 13-1422 violates the free speech provision of the Arizona
Constitution.
I. FACTS AND PROCEDURAL HISTORY
¶2 Petitioners operate adult-oriented businesses in
Phoenix that sell sexually explicit books and magazines. They
were charged with violating A.R.S. § 13-1422(A), which requires
adult bookstores to close for fifty-three hours each week: from
1:00 a.m. to 8:00 a.m. Monday through Saturday, and from 1:00
a.m. to noon on Sunday.1
1
We cite the version of the statute in effect when the
alleged offenses were committed. See State v. Newton, 200 Ariz.
1, 2, ¶ 3, 21 P.3d 387, 388 (2001). Shortly after the
complaints were filed, the legislature amended § 13-1422 by
moving the hours of operation restrictions to subsection (B) and
adding location restrictions for adult businesses as subsection
(A). See 2006 Ariz. Sess. Laws, ch. 227, § 1 (2d Reg. Sess.).
The text of the hours provision was not changed. See id.
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¶3 Petitioners moved to dismiss the charges, citing
Empress Adult Video & Bookstore v. City of Tucson, 204 Ariz. 50,
59-60, ¶ 21, 59 P.3d 814, 823-24 (App. 2002), which held the
hours of operation provision in § 13-1422(A) unconstitutional.
Bound by Empress, the superior court granted the motion. The
State appealed, arguing that Empress was wrongly decided.
¶4 A different panel of the court of appeals agreed and
reversed. State v. Stummer, 217 Ariz. 188, 195, ¶ 26, 171 P.3d
1229, 1236 (App. 2007). We granted review to resolve the
conflict between Empress and the court of appeals opinion in
this case. We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution, A.R.S. § 13-4033(A)(1) (2001),
and Arizona Rule of Criminal Procedure 31.19.
II. DISCUSSION
¶5 Section 13-1422 limits the hours an adult bookstore may
remain open:
An adult arcade, adult bookstore or video store, adult
cabaret, adult motion picture theater, adult theater,
escort agency or nude model studio shall not remain
open at any time between the hours of 1:00 a.m. and
8:00 a.m. on Monday through Saturday and between the
hours of 1:00 a.m. and 12:00 noon on Sunday.
The parties agree that Petitioners operate adult bookstores, as
that term is defined in A.R.S. § 13-1422(D)(2) (2001) (referring
to § 11-821 for the definition of “[a]dult bookstore”) and § 11-
821(I)(2) (Supp. 2007) (defining “adult bookstore” based on the
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content of the books and magazines sold).
¶6 The Arizona Legislature enacted A.R.S. § 13-1422 in
response to complaints from citizens and local businesses that
“adult” businesses were causing negative effects, including
increased prostitution and sexually oriented litter, in the
surrounding communities. See 1998 Ariz. Sess. Laws, ch. 296,
§ 4 (2d Reg. Sess.). These negative effects were alleged to be
more prevalent during the early morning hours and the proponents
therefore urged the legislature to restrict the operating hours
of these businesses to reduce the problems.2
¶7 These negative effects are byproducts or “secondary
effects” of speech. The legislature purportedly designed § 13-
1422(A) to suppress these secondary effects, not to suppress the
speech itself. Although such regulations necessarily affect
speech, restrictions on secondary effects have received less
exacting scrutiny under the Federal Constitution than have laws
designed to directly curtail speech. See City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986). We must
decide what level of scrutiny Arizona courts should apply when
determining the constitutionality, under Article 2, Section 6 of
the Arizona Constitution, of content-based secondary effects
2
The legislative history of A.R.S. § 13-1422 is discussed in
more detail in Center for Fair Public Policy v. Maricopa County,
336 F.3d 1153, 1157-58 (9th Cir. 2003).
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regulations. We review the constitutionality of statutes de
novo. State v. Hansen, 215 Ariz. 287, 289, ¶ 6, 160 P.3d 166,
168 (2007).
A. Analysis of Section 13-1422 Under the First Amendment
¶8 Under the First Amendment, regulations that target
speech based on its content are typically subject to strict
scrutiny. United States v. Playboy Entm’t Group, Inc., 529 U.S.
803, 813 (2000); State v. Evenson, 201 Ariz. 209, 212, ¶ 13, 33
P.3d 780, 783 (App. 2001). The federal courts, however, have
carved out an exception to this rule: Certain time, place, and
manner restrictions designed to address the secondary effects of
speech are subject to intermediate scrutiny. E.g., Renton, 475
U.S. at 48-50; Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd.
of Trs., 411 F.3d 777, 789-90 (6th Cir. 2005); Ctr. for Fair
Pub. Policy v. Maricopa County, 336 F.3d 1153 passim (9th Cir.
2003).
¶9 Finding such regulations justified by the goal of
reducing secondary effects rather than suppressing speech, the
Supreme Court initially characterized such regulations as
content neutral. See, e.g., Renton, 475 U.S. at 49. More
recently, however, federal courts have begun to acknowledge that
secondary effects laws directed exclusively at adult businesses
are not truly content neutral. See City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J.,
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concurring)3 (noting that ordinances restricting adult businesses
“are content based”); id. at 455, 457 (Souter, J., dissenting)
(noting content correlation); Ctr. for Fair Pub. Policy, 336
F.3d at 1164 (calling hours regulations restricting sexually
oriented businesses “quite obviously content based”).
¶10 Nonetheless, the federal courts continue to apply a
form of intermediate scrutiny. Alameda Books, 535 U.S. at 448
(Kennedy, J., concurring); Ctr. for Fair Pub. Policy, 336 F.3d
at 1166. Under the federal test, a “statute will be upheld if
it is designed to serve a substantial government interest, is
narrowly tailored to serve that interest, and does not
unreasonably limit alternative avenues of communication.” Ctr.
for Fair Pub. Policy, 336 F.3d at 1166 (citing Renton, 475 U.S.
at 50).
¶11 Applying this test, several federal courts have upheld
statutes imposing hours of operation restrictions on sexually
oriented businesses against First Amendment challenges. E.g.,
Deja Vu of Cincinnati, 411 F.3d at 791 (6th Cir.); Schultz v.
City of Cumberland, 228 F.3d 831, 846 (7th Cir. 2000); Ctr. for
Fair Pub. Policy, 336 F.3d at 1166-70 (9th Cir.); Lady J.
3
Justice Kennedy’s opinion is considered the controlling
opinion because his concurrence is “the narrowest opinion
joining in the judgment of the Court.” Ctr. for Fair Pub.
Policy, 336 F.3d at 1161 (citing Marks v. United States, 430
U.S. 188, 193 (1976)).
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Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1365
(11th Cir. 1999).
¶12 Soon after A.R.S. § 13-1422 became effective, a
coalition of adult businesses challenged the statute in federal
court, asserting that its hours provision violates the First
Amendment. Ctr. for Fair Pub. Policy, 336 F.3d at 1158.
Applying the Renton test, the district court upheld § 13-1422
and denied injunctive relief. Id. at 1158-59, 1171. Affirming,
the Ninth Circuit found the intermediate scrutiny test
satisfied. It concluded that § 13-1422 serves a substantial
government interest, id. at 1166; is narrowly tailored because
“Arizona’s interest in ameliorating secondary effects ‘would be
achieved less effectively absent the regulation,’” id. at 1169
(quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir.
1998)); and leaves open alternative channels for communication
by allowing stores to remain open “seventeen hours per day
Monday through Saturday, and thirteen hours on Sunday,” id. at
1170.
¶13 Judge Canby dissented, arguing that the majority
misapplied Justice Kennedy’s concurrence in Alameda Books. Id.
at 1171-72 (Canby, J., dissenting). He noted that Justice
Kennedy would prohibit “reduc[ing] secondary effects by reducing
speech in the same proportion.” Id. at 1172 (emphasis omitted)
(quoting Alameda Books, 535 U.S. at 449 (Kennedy, J.,
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concurring)). Therefore, because the closure of bookstores “at
best[] achieves a one-for-one elimination of speech and
secondary effects,” Judge Canby would have held the statute
unconstitutional. Id. at 1173.
B. Interpreting Article 2, § 6 of the Arizona Constitution
¶14 The issue presented in this case is not, as in Center
for Fair Public Policy, whether § 13-1422 violates the First
Amendment to the United States Constitution, but rather whether
it passes muster under Article 2, Section 6 of the Arizona
Constitution. Both the First Amendment and Article 2, Section 6
protect speech from abridgment by the government. The First
Amendment does so by restraining government interference with
speech rights. It provides that “Congress shall make no law
. . . abridging the freedom of speech, or of the press.” U.S.
Const. amend. I. Arizona’s free speech provision, in contrast,
guarantees each individual’s right to speak freely. It states
that “[e]very person may freely speak, write, and publish on all
subjects, being responsible for the abuse of that right.” Ariz.
Const. art. 2, § 6.4
4
Arizona’s constitution provides protection of speech
independent of the First Amendment, which the Supreme Court had
not yet applied to the states at the time of our constitutional
convention. See Patterson v. Colorado, 205 U.S. 454, 462 (1907)
(declining to decide if the Fourteenth Amendment afforded
protection for speech against infringement by state government);
THE RECORDS OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910, at 759 (John
S. Goff ed., 1991) [hereinafter Goff] (reporting statement of
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¶15 The encompassing text of Article 2, Section 6 indicates
the Arizona framers’ intent to rigorously protect freedom of
speech. See Mountain States Tel. & Tel. Co. v. Ariz. Corp.
Comm’n, 160 Ariz. 350, 354-55, 773 P.2d 455, 459-60 (1989). In
addressing censorship, we have said that the words of Arizona’s
free speech provision “are too plain for equivocation. The
right of every person to freely speak, write and publish may not
be limited.” Id. at 355, 773 P.2d at 460 (quoting Phoenix
Newspapers, Inc. v. Superior Court (Thurman), 101 Ariz. 257,
259, 418 P.2d 594, 596 (1966)).
¶16 Arizona courts have had few opportunities to develop
Arizona’s free speech jurisprudence. With regard to unprotected
speech, Arizona courts construing Article 2, Section 6 have
followed federal interpretations of the United States
Constitution. For example, in being “responsible for the abuse”
of the right to speak, write, and publish on “all subjects,” one
Delegate Ingraham that “[t]he first ten amendments to the United
States Constitution . . . have no application to the state law;
they are restrictions upon the power of the United States”).
The framers declined to adopt the language of the First
Amendment’s free speech provision, although they did use some
federal constitutional provisions as models for related
provisions of the Arizona Constitution. E.g., Ariz. Const. art.
2, § 4 (due process); id. art. 2, § 15 (excessive bail and cruel
and unusual punishments). Instead, with little discussion,
Arizona’s drafters adopted our free speech provision, along with
other provisions of our Declaration of Rights, from similar
provisions in Washington’s constitution. See Goff, supra, at
658-59.
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may be held liable for defamation, notwithstanding the right to
“freely speak.” Yetman v. English, 168 Ariz. 71, 82, 811 P.2d
323, 334 (1991); cf. Truax v. Bisbee Local No. 380, Cooks’ &
Waiters’ Union, 19 Ariz. 379, 394, 171 P. 121, 127 (1918)
(noting that Arizona’s constitution does not grant license to
defame).
¶17 We have also stated that Article 2, Section 6 has
“greater scope than the first amendment.” Mountain States, 160
Ariz. at 354, 773 P.2d at 459. This is not a case, however, in
which we need to determine the boundaries of Arizona’s free
speech provision. The State does not argue that the books and
magazines in Petitioners’ bookstores are obscene. Thus in
selling those materials, Petitioners are engaging in protected
speech under Article 2, Section 6. We need only decide whether
and to what extent the State may curtail this protected speech
in order to reduce secondary effects.
¶18 Our opinion in Mountain States is the starting point
for our analysis of this issue. That case involved the
regulation of “ScoopLines”: pay-per-call telephone numbers that
provided customers with messages on a variety of topics, such as
sports and weather. 160 Ariz. at 352, 773 P.2d at 457. In
response to consumer complaints, the Arizona Corporation
Commission ordered Mountain States to block ScoopLines and “to
propose a presubscription plan for the Commission’s approval.”
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Id. at 352-53, 773 P.2d at 457-58. Mountain States sought
relief from this Court, arguing that the Commission’s order
violated Article 2, Section 6.5 Id. at 354, 773 P.2d at 459.
¶19 There, as here, the government argued that the
regulation was intended to accomplish a goal unrelated to the
suppression of protected speech and that any effect on speech
rights was “incidental and permissible.” Id. Although we
concluded that the Commission could impose content-neutral
“time, place, and manner” regulations, we cautioned that, “given
Arizona’s constitutional protections, when dealing with
regulations that affect speech, the [government] must regulate
with narrow specificity so as to affect as little as possible
the ability of the sender and receiver to communicate.” Id. at
358, 773 P.2d at 463.
¶20 The regulation at issue in Mountain States was content
neutral; it applied to all ScoopLines regardless of subject
matter. Id. at 352-53, 773 P.2d at 457-58. The statute before
us today differs in that it is based on content. Section 13-
1422(A) applies only to businesses that predominantly publish or
speak on a particular subject – sex. We will not indulge in the
5
Before this Court considered the case, Mountain States
limited access to ScoopLines that provided sexually explicit
messages. Mountain States, 160 Ariz. at 352 n.4, 773 P.2d at
457 n.4. For that reason, we did not consider what protection
adult material would receive under Article 2, Section 6. Id.
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fiction of calling such regulations content neutral. See
Alameda Books, 535 U.S. at 448 (Kennedy, J., concurring); id. at
466 (Souter, J., dissenting); Ctr. for Fair Pub. Policy, 336
F.3d at 1164. Traditional bookstores, which may sell some of
the same publications sold by Petitioners, are not subject to
the statute’s hours restrictions because they do not qualify as
“adult bookstores.” See A.R.S. §§ 13-1422, 11-821(I)(2).
Mountain States therefore does not control the case before us.
¶21 In Empress, the court of appeals interpreted Mountain
States’ “narrow specificity” language as requiring that the
regulation “affect as little as possible the ability of the
sender and receiver to communicate.” 204 Ariz. at 57, ¶ 13, 59
P.3d at 821 (quoting Mountain States, 160 Ariz. at 358, 773 P.2d
at 463) (emphasis added). The court of appeals thus effectively
adopted a “least restrictive means” standard. See id. at 59, ¶
21, 59 P.3d at 823. Applying this standard, the court concluded
that § 13-1422 violated the Arizona Constitution because closing
adult businesses for at least seven hours a day was not the
least restrictive means of addressing the secondary effects of
adult businesses. Id.
¶22 The booksellers here urge that we adopt the Empress
standard. We conclude, however, that such a standard is not
appropriate for judging the constitutionality of secondary
effects regulations. When a regulation is content based, but
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directed at addressing the secondary effects of speech, the
legislative choice is entitled to more deference than the strict
scrutiny test permits. The government may have a substantial
interest in addressing certain secondary effects of speech, see
Renton, 475 U.S at 50, and applying strict scrutiny may
effectively preclude regulations designed to prohibit such
effects.6
¶23 The State urges us instead to apply the federal
intermediate scrutiny standard articulated by the Supreme Court
in Renton and Alameda Books, as did the Ninth Circuit in Center
for Fair Public Policy and the court of appeals panel in this
case. We decline to strictly apply the federal test because it
is inconsistent with the broad protection of speech afforded by
the Arizona Constitution. Because Arizona’s speech provision
safeguards the right to speak freely on all topics, our test
must more closely scrutinize laws that single out speech for
regulation based on its disfavored content.7 We thus turn to the
6
Because we do not adopt a least restrictive means test, we
disapprove the language in Empress suggesting that such a test
is appropriate.
7
We also decline to apply the federal test because the
Supreme Court has thus far applied its secondary effects test
only to zoning regulations that would permit the speech by the
same speaker at another location. Section 13-1422, in contrast,
entirely prohibits protected speech by adult bookstores during
certain hours at any location within the state.
We note too that § 13-1422 makes Petitioners’ sale of
materials during certain hours not only a criminal offense, but
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question of the appropriate test for determining the
constitutionality, under Article 2, Section 6, of secondary
effects regulations.
C. The Appropriate Test
¶24 The appropriate test for measuring the
constitutionality of content-based secondary effects regulations
must vindicate the constitutional right to free speech, yet
accommodate the government’s interest in protecting the public
health, safety, and welfare. The test has two phases. First,
to qualify for intermediate scrutiny, the State must demonstrate
that a content-based regulation is directed at ameliorating
secondary effects, not at suppressing protected speech. Second,
to survive intermediate scrutiny, the State must show that, in
addressing the secondary effects, the regulation does not sweep
too broadly.
¶25 In the first phase, the challenger must demonstrate
that the challenged provision interferes with the right to
freely speak, write, or publish. Once the challenger has shown
that a content-based or content-correlated regulation affects
free expression, the State bears the burden of demonstrating
a “sexual offense.” Violation of § 13-1422 subjects violators
to sex offender registration. A.R.S. § 13-3821(C) (Supp. 2007).
As we recently observed, sex offender status has significant and
far-reaching consequences. See Fushek v. State, 218 Ariz. 285,
291-92, ¶¶ 24-26, 183 P.3d 536, 542-43 (2008).
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that the enacting body had a reasonable basis for believing that
the speech singled out for regulation created secondary effects
different from or greater than the effects of speech generally,
see City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
430 (1993), and that the challenged regulation was designed to
suppress those secondary effects, not to suppress the speech
itself. Cf. Reno v. ACLU, 521 U.S. 844, 868 (1997) (finding
cyber-zoning laws aimed at primary rather than secondary
effects).
¶26 The State may carry that burden by demonstrating to the
court that, on the basis of the evidence before it, the enacting
body might reasonably believe that the regulated speech created
negative secondary effects greater than those created by speech
generally and that the regulation would address those effects.
See Alameda Books, 535 U.S. at 438; id. at 451 (Kennedy, J.,
concurring). If the State meets this burden of showing that the
legislative body enacted the challenged regulation to respond to
secondary effects rather than disfavored speech, we will address
the challenged regulation under a form of intermediate scrutiny.
¶27 In the second phase of the inquiry for determining the
constitutionality of a content-based secondary effects
regulation, the court must examine whether the regulation
protects substantial government interests and whether it
significantly reduces secondary effects without unduly
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interfering with protected speech. The deference afforded at
the first phase, in which the court determines whether
intermediate scrutiny applies, does not extend to the second
phase, in which the court assesses the effects of the challenged
law. For the regulation to survive, its proponent must show
that the government has a substantial interest, that the
regulation significantly furthers that interest, and that the
challenged regulation does not unduly burden speech. To
establish or disprove these prongs, the challenger and the
proponent of the regulation may bring forth pre- and post-
enactment evidence.
¶28 In applying the phase-two test, the court must first
assess the importance of the government’s asserted interest.
Regulations designed to reduce crime, protect children, or
safeguard constitutional rights, for example, may justify some
infringement on speech rights. See Mountain States, 160 Ariz.
at 357, 773 P.2d at 462 (citing the right to a fair trial);
Evenson, 201 Ariz. at 213, ¶ 17, 33 P.3d at 784 (recognizing
that government has “a compelling interest in protecting the
physical and psychological well-being of minors”). Lesser
concerns, such as the abatement of mere litter or governmental
convenience, will not justify suppression of speech. See
Mountain States, 160 Ariz. at 358, 773 P.2d at 463 (noting that
“governmental convenience and certainty cannot prevail over
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constitutionally guaranteed rights”); New Times, Inc. v. Ariz.
Bd. of Regents, 110 Ariz. 367, 372, 519 P.2d 169, 174 (1974)
(noting that litter control is not sufficiently important to
justify abridgment of speech rights).
¶29 If the government advances a substantial interest, the
court must then determine whether the regulation significantly
furthers that interest. A court may find this prong satisfied
if the regulation substantially reduces or has a significant
ameliorative impact on secondary effects. In this analysis, the
court must consider the likelihood that the regulation will
achieve its intended result. For example, the court may
consider how much sex-related crime occurs during the hours of
forced closure. The answer to this inquiry may elucidate
whether the regulation is designed to significantly reduce such
negative secondary effects and thus whether it may achieve its
intended result.8
¶30 Finally, the third prong – whether the regulation
unduly burdens speech – may be satisfied by establishing that
8
In addressing whether the regulation significantly furthers
a substantial government interest, the State need not prove that
a particular bookstore generates secondary effects, nor should
the court focus solely on the challenging parties’ bookstores.
Because A.R.S. § 13-1422 applies statewide, the government need
only show that, collectively, adult bookstores cause more than
de minimis negative secondary effects and that the regulation is
designed to significantly reduce such effects.
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the government’s substantial interest would be less effectively
achieved without the regulation and ample alternative means of
communication exist. Although the test does not require the
least restrictive means possible, the proponent must show a
close fit or nexus between the ends sought and the means
employed for achieving those ends.
¶31 In analyzing the facts of this case under the first
phase of Arizona’s secondary effects test, we conclude that the
Petitioners have established that their protected speech is
burdened by a content-based regulation. The State, in turn, has
met its burden of demonstrating that the hours provision of
§ 13-1422 was designed to curb the secondary effects of speech,
not to prohibit the speech itself. The State adduced evidence
that the legislature reasonably believed that adult businesses
encourage criminal activity and sexually oriented litter, that
these effects were worse in the nighttime hours, and that the
statute at issue would ameliorate those effects. We therefore
turn to the second phase of the inquiry, application of the
three-part test: whether the government’s interests are
substantial, whether the regulation significantly furthers those
interests, and whether the regulation unduly burdens speech.
¶32 In the second phase, the court must first assess the
significance of the government’s interests. The existence of
mere litter is not by itself sufficiently important to permit a
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substantial restriction on speech. As we stated in New Times,
“minor matters of public inconvenience or annoyance cannot be
transformed into substantive evils of sufficient weight to
warrant the curtailment of liberty of expression.” 110 Ariz. at
372, 519 P.2d at 174. Combating criminal activity such as
prostitution and public indecency, however, is a substantial
governmental interest. We therefore move to the second and
third prongs of the phase-two analysis.
¶33 As to the second prong, whether the statute
significantly furthers the government’s interest, the record is
devoid of evidence that secondary effects are greater during the
hours of forced closure. The record reflects only two pieces of
evidence on this point. One was the testimony of a
representative of the City of Phoenix who testified that the
city could not show a relationship between the hours of
operation and the incidence of crime. The other was a study
from Glendale, Colorado, finding that fewer police calls or
incidents arose from a particular adult business during the late
night hours than during other times. Neither piece of evidence
supports the assertion that the effects are greater during the
hours of forced closure. Without such a showing, the State may
have difficulty establishing that closure is an appropriate
remedy – that is, that this statute significantly furthers the
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government’s interest in reducing secondary effects.9 The
government must establish that, during their early morning
operation, adult bookstores disproportionately cause negative
secondary effects and that these negative effects are or will be
significantly lessened by closure during those hours.
¶34 Finally, regarding the third prong, the State has not
shown that any substantial interests would be achieved less
effectively without the bookstores’ closure for fifty-three
hours each week. The record also does not contain evidence
regarding the availability of alternative channels of
communication during the hours of closure.
¶35 In short, because this case was decided on motion to
dismiss, the record contains no evidence of the significance of
the infringement on speech, the effectiveness of the statute in
reducing negative secondary effects, the nexus between the ends
sought and the means employed, or the availability of
alternative measures.
¶36 Because no court below has had the opportunity to apply
the test we formulate today for evaluating the constitutionality
of content-based secondary effects regulations, we conclude that
all parties should have the opportunity to present additional
9
The statute requires an additional four hours of closure on
Sunday morning. The record contains no evidence that these
hours of forced closure bear any relationship to the secondary
effects at issue.
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evidence supporting their positions, and the trial court should
have the opportunity to apply the test for constitutionality
detailed above. We therefore remand this case to the superior
court for further proceedings consistent with this opinion.
III. CONCLUSION
¶37 We vacate the opinion of the court of appeals and
remand this case to the trial court.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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