Thursday, October 16, 2008

Goldwater Institute: Special privileges or free speech for all?

By Nick Dranias


In a unanimous decision last week, the Arizona Supreme Court determined that the state Constitution's guarantee of free speech furnishes even greater protection from government regulation than the First Amendment. The Court ruled in State v. Stummer that laws regulating the hours of speech-oriented businesses, like bookstores, cannot be implemented unless the government demonstrates that they are needed to prevent significant negative "secondary effects," such as crime. No prior decision articulates this principle as clearly.

This ruling could be signaling the Court's willingness to enforce the Arizona Constitution as the first line of defense against overreaching regulation. It might even help restore state federalism to its most fundamental purpose: preserving liberty. There's only one catch. Stummerdealt with a law that prohibited adult bookstores from operating after 1:00 a.m.

It is truly unfortunate that this decision was rendered in such a contentious context.  History shows that when traditional values, sex and the law collide, strange things happen. The normal rule of law breaks down. The Court's decision may yet be relegated to this legal twilight zone, effectively creating special constitutional privileges for purveyors of adult content but no one else. It would be outrageous if that happened.

If the Court chooses to wade into controversial waters to establish groundbreaking legal precedent, the rule of law demands that such precedent be applied equally and uniformly.  That means there must be renewed scrutiny of all speech regulations that supposedly exist to prevent negative secondary effects. This includes so-called "time, manner, place" regulations by which cities and counties restrict the size, number and location of signs and sandwich boards for businesses that offend no one. The Court must choose free speech for all, not just special privileges for purveyors of "adult literature."

Nick Dranias is the constitutional policy director at the Goldwater Institute.

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