Empress Adult Video and Bookstore v. City of Tucson

In Empress Adult Video and Bookstore v. City of Tucson, 204 Ariz. 50, 60, P21, 59 P.3d 814, 824 (App. 2002), a panel of this Court held that the restriction on hours of operation imposed by A.R.S. 13-1422 on businesses that sell sexually-explicit material, but do not offer nude dancing, did not survive scrutiny under Article 2, Section 6, of the Arizona Constitution, because it was not "the least restrictive means" of curbing the negative effects of the adult speech. 204 Ariz. at 59-60, P21, 59 P.3d at 823-24. In contrast, the court held that as applied to expressive conduct such as nude dancing the Arizona Constitution provides no greater protection than the First Amendment. Id. at 62, P29, 59 P.3d at 826. Empress identified the applicable First Amendment time, place, and manner restrictions, as requiring that the statute "be narrowly tailored to serve the government's legitimate, content-neutral interests." Id. at 56, P10, 59 P.3d at 820. The court noted that a content-neutral time, place, or manner restriction satisfies the federal standard as long as it "promotes a substantial government interest that would be achieved less effectively absent the regulation." Id. at 56-57, P10, 59 P.3d at 820-21. The court also acknowledged that the First Amendment does not require that such a regulation "be the least restrictive or least intrusive means" of promoting the government's content-neutral interests. Id. at 57, P10, 59 P.3d at 821. Empress concluded, however, that a restriction on adult speech passes muster under the free speech provision of the Arizona Constitution only if it is narrowly tailored to a greater degree than required under the United States Constitution, and, in fact, is the "least restrictive means" to achieve the content-neutral purpose. 204 Ariz. at 57, P13, 59 P.3d at 821. The panel found that the record reasonably supported a conclusion that the effects of adult businesses included "increased crime and sexually oriented litter" as well as the "negative effect on neighboring property values," and that the legislation's primary purpose was to target these secondary effects. Empress, 204 Ariz. at 59, P18, 59 P.3d at 823. The panel, however, found that the restriction was not the "least restrictive means" to address those secondary effects because: litter was not of sufficient importance to justify regulation of adult speech; the evidence failed to show that the legislature could not have devised less restrictive means of targeting the other undesirable secondary effects, such as increased enforcement of existing criminal statutes prohibiting loitering, prostitution, and criminal or public nuisances. Id. at 59-60, PP19-21, 59 P.3d at 823-24.