EMPRESS ADULT VIDEO AND BOOKSTORE v. Tucson

• Citation: 204 Ariz. 50,59 P.3d 814
• Decision Date: 27 November 2002
• Docket Number: No. 2 CA-CV 2000-0079.,2 CA-CV 2000-0079.
• Parties: EMPRESS ADULT VIDEO AND BOOKSTORE, an Arizona corporation; Osco Communications Group, Inc., an Arizona corporation, Plaintiffs/Appellants, v. CITY OF TUCSON, a municipal corporation, Defendant/Appellee, and State of Arizona, Intervenor/Appellee.
• Court: Court of Appeals of Arizona

59 P.3d 814

204 Ariz. 50

EMPRESS ADULT VIDEO AND BOOKSTORE, an Arizona corporation; Osco Communications Group, Inc., an Arizona corporation, Plaintiffs/Appellants, v. CITY OF TUCSON, a municipal corporation, Defendant/Appellee, and State of Arizona, Intervenor/Appellee.

No. -0079.

Court of Appeals of Arizona, Division Two, Department B.

November 27, 2002.

Meehan & Associates, By Michael J. Meehan, Tucson, for Plaintiffs/Appellants.

Thomas J. Berning, Tucson City Attorney, By David L. Deibel, Tucson, for Defendant/Appellee.

Janet Napolitano, Arizona Attorney General, By H. Leslie Hall and Thomas J. Dennis, Phoenix, for Intervenor/Appellee.

OPINION

DRUKE, Presiding J.

¶ 1 Appellants Empress Adult Video and Bookstore and Osco Communications Group (collectively, Empress) operate an adult-oriented business that principally sells and rents nonobscene, sexually explicit materials and predominantly features nonobscene, sexually explicit live performances.¹ As a result, A.R.S. § 13-1422, in conjunction with A.R.S. § 11-821, requires Empress to close between 1:00 a.m. and 8:00 a.m. from Monday through Saturday and between 1:00 a.m. and 12:00 noon on Sunday; failure to do so constitutes a class one misdemeanor.² Empress sought an injunction against the enforcement of § 13-1422 and a declaratory judgment that the statute violates article II, §§ 6 and 13 of the Arizona Constitution.³ The trial court found that § 13-1422 does not violate our state constitution and denied injunctive relief. This appeal by Empress followed. We have jurisdiction pursuant to A.R.S. § 12-2101.

¶ 2 We apply a de novo standard of review in determining a statute's constitutionality. State v. Korzuch, 186 Ariz. 190, 920 P.2d 312 (1996); State v. Evenson, 201 Ariz. 209, 33 P.3d 780 (App.2001). Because we presume a statute is constitutional, New Times, Inc. v. Arizona Board of Regents, 110 Ariz. 367, 519 P.2d 169 (1974), the burden of overcoming this presumption rests on the party challenging the statute. Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999). "[A]nd we resolve all uncertainties in favor of constitutionality." Id. at ¶ 31, 972 P.2d 606. But, when constitutional rights are at issue, "we avoid, where possible, attempts to erode [those] rights by balancing them against regulations serving governmental interests." Mountain States Tel. & Tel. Co. v. Arizona Corp. Comm'n, 160 Ariz. 350, 357, 773 P.2d 455, 462 (1989).

Article II, § 6

¶ 3 Article II, § 6 of Arizona's Constitution provides that "[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." Our supreme court has recognized that the scope of this provision is generally greater than that of the First Amendment to the United States Constitution. "Indeed, this court has previously given art. 2, § 6 greater scope than the first amendment." Mountain States, 160 Ariz. at 354, 773 P.2d at 459; see also Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966)

("The right of every person [in Arizona] to freely speak, write and publish may not be limited but such a person may be held accountable for an abuse of that right."); Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (App.1999) (acknowledging that, in some circumstances, our constitution provides greater protection to speech than federal constitution).

¶ 4 Relying primarily on Mountain States, Empress contends the greater scope of article II, § 6 protects the nonobscene, sexually explicit materials and live performances encompassed by § 13-1422 and § 11-821. Empress points out that, in Mountain States, the supreme court opted for "a more literal application" of article II, § 6. 160 Ariz. at 357,773 P.2d at 462. Appellees counter that Mountain States also included the caveat that it did not "deal with the problems from sexually explicit messages." 160 Ariz. at 352 n. 4,773 P.2d at 457 n. 4. And, although appellees concede that article II, § 6 does provide speech "a greater degree of protection in some instances than does the First Amendment," they contend Arizona's courts have often held that article II, § 6 provides the same protection. In support, they cite Yetman v. English, 168 Ariz. 71, 811 P.2d 323 (1991); Reinstein; Bird v. State, 184 Ariz. 198, 908 P.2d 12 (App.1995); In re Maricopa County Juvenile Action No. JT9065297, 181 Ariz. 69, 887 P.2d 599 (App.1994); Berry v. Foster, 180 Ariz. 233, 883 P.2d 470 (App. 1994); and Fiesta Mall Venture v. Mecham Recall Committee, 159 Ariz. 371, 767 P.2d 719 (App.1988). These cases are not controlling, however, because they did not involve, as here, nonobscene, sexually explicit materials or live performances.⁴ Accordingly, we first determine whether article II, § 6 protects such materials or live performances.⁵ The following principles of constitutional construction guide our determination.

¶ 5 The cardinal rule of constitutional construction directs us to "follow the text and the intent of the framers, where it can be ascertained." Fain Land & Cattle Co. v. Hassell, 163 Ariz. 587, 595, 790 P.2d 242, 250 (1990); see also County of Apache v. Southwest Lumber Mills, Inc., 92 Ariz. 323, 376 P.2d 854 (1962)

(governing principle of constitutional construction is to give effect to framers' intent and purpose); S.A. v. Superior Court, 171 Ariz. 529, 530, 831 P.2d 1297, 1298 (App.1992) (established rule of construction requires court "to follow the constitution's text and the framers' intent, if it can be determined"). And, unless the constitution otherwise defines them, we give the words of a constitutional provision their "natural, obvious and ordinary meaning." Southwest Lumber, 92 Ariz. at 327,

376 P.2d at 856; see also McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290, 645 P.2d 801, 805 (1982) ("When the words of a constitutional provision are not defined within it, the meaning to be ascribed to the words is that which is generally understood and used by the people."). We may also consider the provision's history when attempting to determine the framers' intent. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 730 P.2d 186 (1986) (when necessary, court examines history of constitutional provision to determine framers' intent).

¶ 6 Applying the above principles to article II, § 6, we first note that it secures the right of every person in Arizona to "freely speak, write, and publish on all subjects." This language neither expressly nor implicitly excludes the subject of sex. Indeed, the ordinary meaning of the word "all" indicates otherwise. In this context, the word means "each and every one of" or "every." Webster's Third New International Dictionary 54 (1971). Based on the plain language of article II, § 6, then, every person in Arizona has the right to speak, write, and publish freely on every subject, from anarchy to zoology. As the supreme court observed in Phoenix Newspapers, the words of article II, § 6 "are too plain for equivocation." 101 Ariz. at 259, 418 P.2d at 596.

¶ 7 Moreover, the available history of article II, § 6 does not suggest the framers intended to limit the type of subjects that one can address. According to one legal scholar, those attending the 1910 constitutional convention "borrowed liberally from the Constitution of the State of Washington in framing the Declaration of Rights that now appears in article II." John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 82 (1988). The free speech provisions in both constitutions contain identical language and, of article I, § 5 of the Washington Constitution, it has been said that it "often will support a broader protection for free speech." State v. Reece, 110 Wash.2d 766, 757 P.2d 947, 955 (1988). Our research also discloses that some forty other state constitutions contain provisions with language substantially similar to article II, § 6 of our state constitution.⁶ For instance, article I, § 2 of the California Constitution contains almost identical language and is considered more "definitive and inclusive than the First Amendment." Wilson v. Superior Court, 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116, 120 (1975). Likewise, "[t]he protection afforded by the guarantees of free press and speech in [article I, § 8 of] the New York Constitution is often broader than the minimum required by the First Amendment." O'Neill v. Oakgrove Constr. Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277 n. 3 (1988). Also, similar language in article I, § 8 of the Texas Constitution has been held "to ensure broad liberty of speech," Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex. 1992), and to "clothe[ ] the citizen with liberty to speak, write, or publish his opinion on any and all subjects." Ex parte Neill, 32 Tex.Crim. 275, 22 S.W. 923, 924 (1893). Additionally, the Oregon Supreme Court has said that the free speech provision of its constitution has greater breadth than the First Amendment and covers "verbal and nonverbal expressions contained in films, pictures, paintings, sculpture and the like" on "`any subject whatever.'" State v. Henry, 302 Or. 510, 732 P.2d 9, 11 (1987),quoting article I, § 8 of the Oregon Constitution. And, in Lindsay & Co. v. Montana Fed'n of Labor, 37 Mont. 264, 96 P. 127, 131 (1908), the court reached this conclusion about article III, § 10 of the Montana Constitution: "That the individual citizen of Montana cannot be prevented from speaking, writing, or publishing whatever he will on any subject." We are of the same opinion on our own article II, § 6; it protects the right of each person in this state to speak, write, or publish on all manner of subjects, including sex, and to do so freely.

¶ 8 Although this right may be exercised freely, article II, § 6 itself makes each individual "responsible for the abuse of that right." Accordingly, a person may be answerable for defamatory statements, see Yetman; perjury, see A.R.S. § 13-2702 and Franzi v. Superior Court, 139 Ariz. 556,...