State v. Stummer

                    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.

                                       - 2 -
¶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


                                     - 3 -
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).

                                       - 4 -
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.,

                                      - 5 -
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)).

                                       - 6 -
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.,

                                          - 7 -
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
                                       - 8 -
¶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.

                                   - 9 -
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.”

                                            - 10 -
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.

                                            - 11 -
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

                                         - 12 -
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
                                       - 13 -
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).

                                   - 14 -
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

                                        - 15 -
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

                                                - 16 -
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.


                                      - 17 -
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

                                     - 18 -
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.
                                      - 20 -
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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