Arcara v. Cloud Books, Inc.
478 U.S. 697 (1986)
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Rule of Law:
The First Amendment does not protect a business that engages in expressive activities, such as a bookstore, from the enforcement of a content-neutral public health nuisance law when the law is triggered by illegal, non-expressive conduct occurring on the premises.
Facts:
- Respondents, Cloud Books, Inc., owned and operated the 'Village Books and News Store' in Kenmore, New York.
- The store identified as an 'adult' bookstore, selling sexually explicit books, magazines, and movies viewable in on-site booths.
- In the fall of 1982, an undercover deputy sheriff investigated reports of illicit sexual activities at the store.
- The deputy personally observed patrons engaging in acts of masturbation, fondling, and fellatio.
- On at least four occasions, men solicited the deputy for prostitution, offering to perform sexual acts for money.
- The deputy reported that the store's management was fully aware of the ongoing illegal sexual activity on the premises.
Procedural Posture:
- The Erie County District Attorney filed a civil complaint against Cloud Books, Inc. in the New York Supreme Court, Trial Division, seeking a one-year closure of the bookstore as a public nuisance.
- The trial court denied Cloud Books' motion for summary judgment, which had argued the closure would violate the First Amendment.
- Cloud Books appealed to the Appellate Division of the New York Supreme Court, which affirmed the trial court's decision.
- Cloud Books was granted leave to appeal to the New York Court of Appeals, the state's highest court.
- The New York Court of Appeals reversed, holding that the closure remedy was an unconstitutional burden on speech under the O'Brien test because it was not the least restrictive means of abating the nuisance.
- The petitioner, District Attorney Arcara, successfully sought a writ of certiorari from the U.S. Supreme Court.
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Issue:
Does the First Amendment bar the enforcement of a state public health statute that authorizes the one-year closure of a premises found to be a public nuisance due to illegal sexual activity, when that premises is also used as an adult bookstore?
Opinions:
Majority - Chief Justice Burger
No, the First Amendment does not bar enforcement of the statute. The statute is directed at regulating illegal, non-expressive conduct, not at suppressing speech. The crucial distinction from cases like O'Brien is that the sexual activity in this case has no element of protected expression. The law is one of general applicability and does not single out bookstores for punishment. While the closure imposes a burden on the bookselling business, it is not subject to a 'least restrictive means' analysis because the sanction is not triggered by expressive conduct, but by the illegal use of the premises. Respondents are free to sell the same materials at another location.
Dissenting - Justice Blackmun
Yes, the First Amendment bars enforcement of the statute as applied here. A statute must be tested by its operation and effect, and closing a bookstore for a year directly and substantially impairs First Amendment activities. The Court should not disregard this effect simply because the law is generally applicable and triggered by non-expressive conduct. The state must demonstrate that it has chosen the least restrictive means to abate the nuisance, such as arresting the patrons committing the illegal acts, rather than imposing a penalty that completely shutters a forum for protected speech. This ruling creates a loophole for the state to suppress 'undesirable' but protected speech without facing First Amendment scrutiny.
Concurring - Justice O'Connor
No, the First Amendment does not bar enforcement in this specific case. The government is regulating non-expressive conduct, not speech or an incidental effect of speech, so a First Amendment standard of review is not triggered. However, if there were evidence that the government was using the nuisance statute as a pretext to close the bookstore because of the content of its books, First Amendment concerns would be clearly implicated and would require the appropriate constitutional analysis. Because there is no suggestion of such a pretextual use here, the application of the statute is permissible.
Analysis:
This decision significantly clarifies the boundary between conduct and speech under the First Amendment. It establishes that businesses engaged in protected speech, like bookstores, are not shielded from generally applicable laws targeting illegal, non-expressive conduct. The case narrows the application of the O'Brien test, holding that it only applies when the conduct being regulated has a significant expressive element. This creates a critical threshold question for future cases: if the conduct is purely criminal and non-expressive, the First Amendment is not implicated by a content-neutral regulation, even if it incidentally burdens a speech-related enterprise. The concurrence's warning about pretextual enforcement, however, leaves open a path for future First Amendment challenges in similar cases.
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