Tucson, Arizona Saturday, 31 May 2003
By Howard Fischer
CAPITOL MEDIA SERVICES
Cities can't prevent people from buying magazines with pictures of naked people in the middle of the night, according to a state Supreme Court ruling stemming from a Tucson case.
But they can ban all-night live sex shows.
Without comment, the Arizona Supreme Court has upheld an appellate court ruling that voided part of a state law designed to protect neighborhoods from the effects of having adult shops operating around the clock. In making that decision, the justices essentially concluded there is a state constitutional right to buy not just books and magazines but even sex toys at any hour of the day or night.
But the decision leaves intact another section of the law that precludes nude dancing after 1 a.m. That activity was determined not to have the same constitutional protections.
The case at issue involved the Empress Theater, 3832 E. Speedway, and efforts by the City Attorney's Office to force it to close its doors at 1 a.m. But the ruling affects similar establishments statewide that now are free to be open 24 hours a day.
Dave Deibel, an assistant Tucson city attorney, said the fallout from the ruling could be even broader.
He noted that Tucson and most communities have other laws designed to regulate "adult" businesses, with issues ranging from zoning restrictions to how close they can be to one another. Deibel said that, in concluding that there are protected state constitutional rights that permit the sale of these items, the court may have opened the door to challenges of these regulations.
The legislation was enacted in 1998 amid complaints by neighborhood groups about all-night establishments that they said peddled pornography. Lawmakers listened to testimony about how these shops resulted in more crime and litter.
As adopted, the statute says adult bookstores, cabarets, video shops, escort agencies and nude model studios have to close each night at 1 a.m. They may not reopen until 8 a.m. Monday through Saturday - and not until noon on Sunday.
A federal judge rejected efforts to block the law from taking effect. That led the owners of the Empress, forced to shut down late at night, to file suit.
Judge Nanette Warner of Pima County Superior Court found no legal flaws in the statute.
But Appellate Judge William Druke, writing the majority ruling for the appellate court - the one just ratified by the Supreme Court - said the law interferes with state constitutional rights. And those rights are broader than the First Amendment protections of the U.S. Constitution.
Specifically, the state Constitution provides that "every person may freely speak, write, and publish on all subjects." The appellate court said that neither implicitly includes - nor excludes - sex.
The appellate court said governments can impose reasonable restrictions on rights of free speech to achieve legitimate goals. But the appellate court said forcing stores to close seven hours a day does not meet the legal requirement that limits be narrowly tailored.
"Rather, the requirement bans such speech for not less than seven hours a day and thus, during those hours, erects a direct barrier to communication," Druke said.
But the court said nude dancing is another matter. The judges said the expanded protections of the Arizona Constitution provide no shield from laws that set hours of operation.