Arizona: adult bookstore hours-of-operation statute

Can we stay up late tonight? That’s what kids ask parents.

It’s also what adult bookstore owners have been asking the State of Arizona ever since its legislature adopted Revised Arizona Statute § 13-1422. That statute forbids adult bookstores from remaining open during certain early morning hours. Today the Arizona Supreme Court answered that question (almost); at least the supreme court resolved a split between the state’s courts of appeals on how to answer the question. A couple of highlights from the opinion:  

• Section 13- 1422(A) applies only to businesses that predominantly publish or speak on a particular subject – sex. We will not indulge in the fiction of calling such regulations content neutral. 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.” 
• As to … 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 government’s interest in reducing secondary effects. 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.

The plaintiffs sued under the free-speech provision of Arizona’s Constitution (Art. 2, Sec. 6), which states that “[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” It is not a First Amendment case. To determine whether § 13-1422 offends the Arizona Constitution, the State urged the supreme court to adopt a test mirroring the one applicable to the clause’s federal counterpart (i.e., the First Amendment). The court’s response:

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.

After articulating a new rule, the supreme court sent the case back to the trial court for more fact-finding. It’ll be interesting to see how the case goes from there. In the meantime, if you’re inclined to buy a book about sexuality, please act on that urge only after 8 o’clock in the morning. The State does not want you shopping for such books when most of the government sleeps.