Adult entertainment horizon

Thursday, November 14, 2002

Adult-entertainment establishments face a number of restrictions ranging from licensing to zoning to regulating the content of nude dancing. A common restriction on such businesses limits the hours of operation, prohibiting them from being open during early morning hours. Courts justify these limits — and nearly all other restrictions on adult businesses — on the basis of the secondary-effects doctrine.

This doctrine provides that government officials have greater leeway to restrict adult businesses and their expressive content if the purpose of the regulations is to combat harmful side (or secondary) effects allegedly associated with such businesses — such as decreased property values and increased crime. The doctrine does not save government limits if the true purpose of the regulation is to suppress free expression. In the federal courts, regulations on adult businesses justified by the secondary-effects doctrine are evaluated under a lower level of review — intermediate scrutiny — rather than the highest form of judicial review — called strict scrutiny.

Many federal courts have upheld hours-of-operation regulations, reasoning that the intent of the laws was to combat crime — much of which occurs in the early morning hours. However, what if there is more crime committed at a local 24-7 convenience store than at the local adult bookstore? Furthermore, a looming question on the horizon is whether a state Supreme Court might view a restriction on adult businesses with a more critical eye under its state constitution than a federal court would under the First Amendment.

A case from Arizona may serve to be such a test case for hours-of-operation litigation on both counts — whether these restrictions actually combat secondary effects and whether there may be greater relief for free-speech claimants under a state constitution. In State of Arizona v. Stummer, the Arizona Supreme Court ruled in October 2008 that a lower court must apply a higher level of scrutiny (or review) to a challenge to an hours-of-operation regulation brought under the Arizona Constitution.

A state Supreme Court is free to interpret its own state constitution’s free-speech provision to provide greater protection for individual freedom than the U.S. Supreme Court provides under the federal Constitution’s First Amendment.

In the Stummer case, the Arizona Supreme Court declined to apply the traditional intermediate-scrutiny standard applied in secondary-effects cases in the federal courts. “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,” the Arizona high court wrote.

The Arizona high court also questioned whether secondary effects are really greater during late-night or early morning hours. The state high court noted that “the record is devoid of evidence that secondary effects are greater during the hours of forced closure.” The state high court added that “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.”

The case is headed back to the lower courts and bears close watching.

Posted October 2008.