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Ariz. justices’ ruling challenges adult-bookstore law

Arizona- A new ruling by the Arizona Supreme Court is shining a light on a provision of the state Constitution that the justices say gives state residents broader free-speech rights than residents of other states.

The decision comes in a case challenging the validity of a law requiring adult bookstores and similar shops to shutter every night by 1 a.m. Owners of such businesses are trying to have the law declared void as a violation of their rights of free speech.

In a unanimous ruling, the justices acknowledged that the U.S. Supreme Court has concluded that such restrictions do not violate the First Amendment. So, if this case were being decided strictly on the basis of the U.S. Constitution, the challenge would fail.
However, the justices pointed out that free-speech protections in Arizona’s own Constitution are broader.

The result, they concluded, is that any law targeting a specific kind of business must be based on evidence of how the restrictions will address specific negative effects. More to the point, the government has to show it is not simply trying to squelch “disfavored” speech.

But that’s not all.

Justice Rebecca White Berch, writing the decision, said the government also must prove it has a “substantial interest” in enacting the regulation and that the law does not “unduly burden” free speech.

The ruling does not void the law, but it does send it back to a trial judge with specific instructions about the breadth of the state Constitution – and what the state has to prove to justify the restrictions if it hopes to enforce it in the future.

The decision drew criticism from Peter Gentala, attorney for the Center for Arizona Policy, which had helped to craft the 1998 law. He said the justices were reading legal protections for adult bookstores into the state Constitution that the framers never intended.

“What you’ve got is a situation where the Arizona Constitution’s meaning has changed over time,” he said. “And the new meaning that the court is announcing … is going to give very little discretion to communities to protect themselves from the harmful effects of sexually oriented businesses.”

The law at issue requires certain businesses to close each night at 1 a.m. and not reopen until 8 a.m. Monday through Saturday and noon on Sunday.

Last year, the Court of Appeals upheld the law, saying the state could prosecute the owners of two Phoenix stores that were accused of breaking that law.

The judges said that although legislators cannot censor their message, lawmakers do have a legal right to deal with the “secondary effects” of these stores, including drug use and prostitution.

The appellate judges said state and federal courts have consistently ruled that the government can regulate hours of operation for places offering nude dancing. And federal courts have concluded there are no First Amendment barriers to similar restrictions on places that sell adult books and magazines.

But Berch said the federal Constitution is the wrong touchstone.

That amendment says “Congress shall make no law … abridging the freedom of speech, or the press.” By contrast, she said, Article 2 Section 6 of the Arizona Constitution says “every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”

That language, she said, indicates the framers’ intent to “rigorously protect freedom of speech.”

What all that means, Berch said, is that courts must assess why the government is imposing the restrictions.

She said some interests, like reducing crime, protecting children or safeguarding constitutional rights may provide justification, while lesser concerns like reducing littering or governmental convenience “will not justify suppression of speech.”

Berch also said the state has to show that, during those overnight hours, these businesses disproportionately cause negative secondary effects and that those effects would be significantly lessened by forcing them to shut during those hours.

Finally, she said, the government must show that its legitimate needs can be achieved only with these restrictions. Berch said that, in this case, that means showing it actually is necessary to have these businesses closed 53 hours each week and not less.

Gentala said the court’s conclusion about the breadth of Arizona’s free-speech requirements ignores the state’s legal history.

“Not just dirty pictures but explicit writings were illegal,” he said of the statutes on the books when the constitution was adopted in 1912.

“What’s happening here is available evidence of intent of the framers is being disregarded.”

In the court ruling, however, Berch noted that no one was claiming that the items being sold or displayed at the businesses fit the definition of obscenity. She said all are perfectly legal to sell.

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