Ruling casts doubt on adult bookstore hours

The Arizona Supreme Court threw legal doubt Thursday on the ability of state lawmakers to require adult bookstores and similar shops to shutter every night at 1 a.m.

In a unanimous ruling, the justices acknowledged that the U.S. Supreme Court has concluded such restrictions do not violate the First Amendment right.

But they pointed out that the constitutional free speech protections in Arizona's own constitution are broader.

The result, the justices 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.

Thursday's ruling does not void the law. But it sends the case back to a trial judge with specific instructions on 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 some legal protection 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 Thursday. "And the new meaning that the court is announcing today 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 who were accused of breaking that law.

The judges said while legislators cannot censor their message, lawmakers do have a legal right deal with the "secondary effects'' of these stores, including drug use and prostitution.

The appellate judges said state and federal courts have consistently ruled 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.''