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 
- 2 - 

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. 
- 3 - 

¶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 
- 4 - 

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). 
- 5 - 

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., 
- 6 - 

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)). 
- 7 - 

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., 
- 8 - 

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 
- 9 - 

¶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. 
- 10 - 

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.” 
- 11 - 

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.
- 12 - 

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 
- 13 - 

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 
- 14 - 

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). 
- 15 - 

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 
- 16 - 

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 postenactment 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 
- 17 - 

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. 
- 18 - 

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 
- 19 - 

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 
- 20 - 

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. 
- 21 - 

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