Center for Fair Public Policy v. Maricopa County
Opinion
Lead Opinion
Scannlain, J.
Opinion by Judge O’SCANNLAIN; Dissent by Judge CANBY.
OPINION
We must decide whether a state statute prohibiting sexually-oriented businesses from operating during late night hours passes muster under the First Amendment.
I
The Arizona statute at issue here requires all sexually-oriented businesses 1 to close “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.rn. and 12:00 noon on Sunday.” Ariz.Rev.Stat. § 13-1422(A). A sexually-oriented business is an “adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio....” Id. Violation of § 13-1422(A) is a class one misdemean- or. Id. § 13-1422(B).
Section 13-1422 was originally proposed to the Arizona legislature in 1998 as Senate Bill 1367. The bill was assigned to the House of Representatives’ Government Reform and States’ Rights Committee and to the Senate Family Services Committee, and public hearings were held in both bodies. While the original bill passed in the Senate, it was voted down in the Arizona House Rules Committee.
At the same time, Senate Bill 1162, a bill authorizing Arizona…
Dissenting Opinion
Canby, J.
dissenting:
I dissent from the majority opinion because I conclude that it is inconsistent with City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 , 122 S.Ct. 1728 , 152 L.Ed.2d 670 (2002). As the majority here recognizes, the focus of our examination of Alameda Books is the opinion of Justice Kennedy, because there was no majority opinion and Justice Kennedy’s concurring opinion was the one that supported the Court’s judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977).
Like the four dissenters in Alameda Books, Justice Kennedy viewed the regulation of adult entertainment businesses to be content-related, because the businesses to be regulated are identified by the content of their speech. Alameda Books, 535 U.S. at 448 , 122 S.Ct. 1728 (Kennedy, J., concurring). Yet Justice Kennedy agreed with City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986), that a regulation that is “designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.” Alameda Books, 535 U.S. at 448 , 122 S.Ct. 1728 .