ADF Alliance Alert

Today’s issue of Family Facts by the Center for Arizona Policy reports:

Today the Arizona Supreme Court issued a disappointing ruling in a case challenging the Arizona law that limits the hours of operation of sexually-oriented businesses . . . the Supreme Court came up with a new test that makes it harder for communities to protect themselves from these harmful effects . . .

Closing-hours laws like Arizona’s have been upheld by state and federal courts all over the country, and the Ninth Circuit Court of Appeals specifically upheld Arizona’s law in 2003. But, the Arizona Supreme Court decided that sexually-explicit speech should receive greater protection under the Arizona Constitution than under the First Amendment! . . .

In terms of its legal analysis, the Court’s opinion waffles back and forth between federal standards and new state standards that the Court is making up as it goes along . . .

Arizona v. Stummer, No. CR-07-0429-PR (Ariz. Oct. 9, 2008).  Excerpt:

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 . . .

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 . . .

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 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) . . .

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 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 . . .

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 . . .

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 . . .

Finally, the third prong – whether the regulation unduly burdens speech – may be satisfied by establishing that 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 .  . .