Arcara v. Cloud Books, Inc

• Decision Date: 07 July 1986
• Docket Number: No. 85-437,85-437
• Citation: 478 U.S. 697,106 S.Ct. 3172,92 L.Ed.2d 568
• Parties: Richard ARCARA, District Attorney of Erie County, Petitioner v. CLOUD BOOKS, INC., etc., et al
• Court: U.S. Supreme Court

478 U.S. 697

106 S.Ct. 3172

92 L.Ed.2d 568

Richard ARCARA, District Attorney of Erie County, Petitioner

v CLOUD BOOKS, INC., etc., et al.

No. 85-437.

Argued April 29, 1986.

Decided July 7, 1986.

Syllabus

A New York statute authorizes closure of a building found to be a public health nuisance because it was being used as a place for prostitution and lewdness. After a county Deputy Sheriff's undercover investigation of respondents' "adult" bookstore disclosed that illicit sexual activities, including solicitation of prostitution, occurred on the premises, a civil complaint was filed against respondents seeking closure of the premises under the statute. Respondents answered by alleging, inter alia, that a closure would impermissibly interfere with their First Amendment right to sell books on the premises and that the closure statute was not intended to apply to establishments other than houses of prostitution. The New York trial court denied respondents' motion for a summary judgment, holding that the statute applied to respondents. The Appellate Division affirmed. The New York Court of Appeals reversed on First Amendment grounds. Applying the test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, for determining the validity of a statute regulating conduct that has an expressive element, the court held that the closure statute failed the part of the O'Brien test that requires the statute to be no broader than necessary to achieve its purpose, because the closure order was much broader than necessary to achieve the restriction against illicit sexual activities and because an injunction against continuing those activities could achieve the same effect without restricting respondents' bookselling activities.

Held: The First Amendment does not bar enforcement of the closure statute against respondents' bookstore. United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling on premises used for prostitution does not confer First Amendment coverage to defeat a statute aimed at penalizing and terminating illegal uses of premises. Pp. 702-707. 65 N.Y.2d 324, 491 N.Y.S.2d 307, 480 N.E.2d 1089, reversed.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR J., filed a concurring opinion, in which STEVENS, J., joined, post, p. ---. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. ---.

John J. DeFranks, Buffalo, N.Y., for petitioner.

Paul J. Cambria, Jr., Buffalo, N.Y., for respondents.

Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to decide whether the First Amendment bars enforcement of a statute authorizing closure of a premises found to be used as a place for prostitution and lewdness because the premises are also used as an adult bookstore.

I

A.

Respondents own and operate the "Village Books and News Store" in Kenmore, New York. The establishment characterizes itself as an "adult" bookstore and sells sexually explicit books and magazines with booths available for the viewing of sexually explicit movies. No issue is presented with respect to whether the movies or other materials available at respondents' store are obscene pornographic materials.

During September and October 1982, the Erie County Sheriff's Department conducted an undercover investigation into reported illicit sexual activities occurring on respond- ents' premises. A Deputy Sheriff personally observed instances of masturbation, fondling, and fellatio by patrons on the premises of the store, all within the observation of the proprietor. He also observed instances of solicitation of prostitution, and was himself solicited on at least four occasions by men who offered to perform sexual acts in exchange for money. The Deputy Sheriff reported that the management of the "Village Books and News Store" was fully aware of the sexual activity on the premises. App. to Pet. for Cert. A-54, A-56, A-57, A-58.

B

The results of the undercover investigation formed the basis of a civil complaint against respondents seeking closure of the premises under § 2321 of the New York Public Health Law. Section 2320 of the New York Public Health Law defines places of prostitution, lewdness, and assignation as public health nuisances:

"1. Whoever shall erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, or prostitution is guilty of maintaining a nuisance.

"2. The building, erection, or place, or the ground itself, in or upon which any lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments, and movable property used in conducting or maintaining such nuisance, are hereby declared to be a nuisance and shall be enjoined and abated as hereafter provided." N.Y. Pub. Health Law § 2320 (McKinney 1985).

Section 2329 provides for the closure of any building found to be a public health nuisance under § 2320:

"1. If the existence of the nuisance be admitted or established in an action as provided in this article, or in a criminal proceeding in any court, an order of abatement shall be entered as part of the judgment in the case, which order. . . shall direct the effectual closing of the building, erection or place against its use for any purpose, and so keeping it closed for a period of one year. . . ." N.Y. Pub. Health Law § 2329 (McKinney 1985).

Section 2321 of the statute authorizes a suit by the district attorney, among others, to enforce its provisions.

Respondents answered the complaint by denying the allegations of the Deputy Sheriff that sexual activities occurred on the premises with respondents' knowledge, and also by asserting that a closure of the premises would impermissibly interfere with their First Amendment right to sell books on the premises. Respondents moved for partial summary judgment on these First Amendment grounds, and also advanced an argument that the statute was not intended to reach establishments other than houses of prostitution in the traditional sense. The Trial Division of the New York Supreme Court, Special Term, denied the motion for summary judgment, holding that the statute was applicable to respondents; it rejected respondents' First Amendment claims as well, reasoning that the closure order sought did not involve a prior restraint of materials presumptively protected by the First Amendment. It also held that respondents' bookselling activities could not be employed as "a curtain behind which illegal activity can be freely encouraged and conducted."

The Appellate Division, Fourth Department, affirmed. People ex rel. Arcara v. Cloud Books, Inc., 101 App.Div.2d 163, 475 N.Y.S.2d 173 (1984). The Appellate Division agreed with the trial court that the statute applied to the premises in which respondents' bookstore was operated; closure of the premises would not violate the First Amendment since the admittedly unlawful conduct and activities giving rise to the abatement action were not presumptively protected expressive conduct, and respondents' sales of books on the premises did not shield it from enforcement of the closure statute. The Appellate Division granted respondents' motion for leave to appeal to the New York Court of Appeals, and certified both the statutory question whether the statute reached establishments other than houses of prostitution and the First Amendment issue.

The New York Court of Appeals reversed. People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324, 491 N.Y.S.2d 307, 480 N.E.2d 1089 (1985). That court agreed that the Public Health Law applied to establishments other than houses of prostitution, but reversed on First Amendment grounds. The court relied on cases from other jurisdictions which analogized an order closing a bookstore or movie theater based upon previous distribution of obscene materials to an unconstitutional prior restraint. E.g., Gayety Theatres, Inc. v. City of Miami, 719 F.2d 1550 (CA11 1983); General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1494, 47 L.Ed.2d 753 (1976); People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600, cert. denied sub nom. Van de Kamp v. Projection Room Theater, 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289 (1976).

The New York Court of Appeals relied on the impact of the closure order upon respondents' protected bookselling activities, and concluded that that circumstance required scrutiny under this Court's First Amendment analysis of regulations aimed at nonspeech activity but having an incidental effect on speech. Purporting to apply the four-part test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the New York Court of Appeals determined that the closure remedy fell within the constitutional power of the State; that the closure remedy furthered aa substantial state interest in thwarting prostitution; and that the purpose of the closure remedy was unrelated to the suppression of speech.

Notwithstanding that analysis, the court determined that the closure remedy failed the fourth part of the O'Brien test, which requires that the statute incidentally restricting speech be no broader than necessary to achieve its purpose. The court reasoned that upon the summary judgment record before it, an order closing the premises for a year was much broader than necessary to achieve the restriction against illicit commercial sexual activities and that an injunction against continuing the admittedly...