State v. Stummer

Decision Date09 October 2008
Docket NumberNo. CR-07-0429-PR.,CR-07-0429-PR.
Citation194 P.3d 1043,219 Ariz. 137
PartiesSTATE of Arizona, Appellant, v. Hubert August STUMMER and Dennis Allen Lumm, Appellees.
CourtArizona Supreme Court

Andrew P. Thomas, Maricopa County Attorney by James P. Beene, Appeals Bureau Chief, Phoenix, and Law Office of Scott E. Boehm, P.C., by Scott E. Boehm, Phoenix, Attorneys for State of Arizona.

Richard J. Hertzberg Attorney at Law by Richard J. Hertzberg, Phoenix, Attorneys for Hubert August Stummer and Dennis Allen Lumm.

The Center for Arizona Policy by Cathi W. Herrod, Peter A. Gentala, Deborah M. Sheasby, Phoenix, Attorneys for Amicus Curiae The Center for Arizona Policy.


BERCH, 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.


¶ 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

¶ 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.


¶ 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 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, 106 S.Ct. 925, 89 L.Ed.2d 29 (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 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, 120 S.Ct. 1878, 146 L.Ed.2d 865 (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, 106 S.Ct. 925; 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, 106 S.Ct. 925. 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, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring)3 (noting that ordinances restricting adult businesses "are content based"); id. at 455, 457, 122 S.Ct. 1728 (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, 122 S.Ct. 1728 (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, 106 S.Ct. 925).

¶ 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. 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, 122 S.Ct. 1728 (Kennedy, J., 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

¶ 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....

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