## Facts

- Hubert August Stummer and Dennis Allen Lumm operated adult-oriented bookstores in Phoenix selling sexually explicit books and magazines.
- They were charged with violating A.R.S. § 13-1422(A), which required specified adult businesses to close between 1:00 a.m. and 8:00 a.m. Monday–Saturday and between 1:00 a.m. and 12:00 noon on Sunday.
- The statute applied to “adult bookstores” as defined by the sexual content of materials sold.
- The State justified the hours restriction as addressing asserted secondary effects near adult businesses, including increased prostitution and sexually oriented litter.

## Issues

1. What level of scrutiny applies under Article 2, § 6 of the Arizona Constitution to a law that is facially content-based but defended as targeting secondary effects.
2. Whether, under the proper standard, A.R.S. § 13-1422(A)’s hours-of-operation limits violate Article 2, § 6.
3. Whether and to what extent a prior decision applying a rigid strict-scrutiny approach to similar restrictions should be disapproved.

## Decision

- The Arizona Supreme Court vacated the court of appeals’ decision that had upheld the statute and remanded for further proceedings.
- The court held that adult-business secondary-effects regulations like § 13-1422(A) remain content-based under Article 2, § 6 and cannot be treated as content-neutral merely because the State cites secondary effects.
- The court rejected categorical rules of either strict scrutiny or federal-style intermediate scrutiny and adopted a heightened, sliding-scale approach keyed to the law’s burden on protected expression and the strength of the evidence supporting the asserted harms.
- On the record presented, the State had not yet made a sufficient showing that the specific hours restrictions were justified under the new standard, particularly regarding evidentiary support and the availability of less speech-restrictive alternatives.
- The court disapproved the earlier case to the extent it imposed a rigid strict-scrutiny framework for all content-based secondary-effects regulations, while not deciding that the earlier outcome was necessarily wrong on its record.

## Legal Principles

- Article 2, § 6 of the Arizona Constitution may provide broader protection for speech than the First Amendment, and Arizona courts need not mirror federal categorizations when analyzing facially content-based laws.
- A regulation that targets adult businesses by reference to sexually explicit content is content-based, even if justified as addressing non-speech harms such as crime or litter.
- Content-based secondary-effects regulations are subject to heightened, sliding-scale scrutiny under Article 2, § 6: the more a law burdens protected expression and the more directly it turns on content, the more demanding the review becomes, approaching strict scrutiny.
- The government bears the burden to justify such laws with evidence connecting the regulation to the asserted harms and to show the regulation is appropriately tailored, including consideration of less speech-restrictive alternatives that would be comparably effective.

## Conclusion

The court treated Arizona’s adult-business hours restriction as a content-based speech regulation and required heightened, evidence-driven review under a sliding-scale standard; because the existing record was insufficient to determine constitutionality under that approach, the case was remanded for further factual development.


State v. Stummer, 194 P.3d 1043 (Ariz. 2008)