People ex rel. Arcara v. Cloud Books, Inc.

• Decision Date: 18 December 1986
• Citation: 510 N.Y.S.2d 844,503 N.E.2d 492,68 N.Y.2d 553
• Parties: , 503 N.E.2d 492, 55 USLW 2366 The PEOPLE of the State of New York ex rel. Richard J. ARCARA, as District Attorney of Erie County, Respondent, v. CLOUD BOOKS, INC., Doing Business as Village Book and News Store, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 844

510 N.Y.S.2d 844

68 N.Y.2d 553, 503 N.E.2d 492, 55 USLW 2366

The PEOPLE of the State of New York ex rel. Richard J.

ARCARA, as District Attorney of Erie County, Respondent, v. CLOUD BOOKS, INC., Doing Business as Village Book and News

Store, Appellant, et al., Defendants.

Court of Appeals of New York.

Dec. 18, 1986.

Paul J. Cambria, Jr., and Mary Good, Buffalo, for appellant.

Richard J. Arcara, Dist. Atty. (John J. DeFranks and Jo W. Faber, Buffalo, of counsel), respondent pro se.

Frederick A.O. Schwarz, Jr., Corp. Counsel (Larry A. Sonnenshein and Leonard Koerner, New York City, of counsel), for City of New York, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The District Attorney of Erie County seeks a court order closing a bookstore as a public nuisance (Public Health Law, art. 23, tit. II) because some patrons are using the premises to commit illegal sexual acts. The question presented is whether an order closing the bookstore, to curtail the illegal acts of customers, incidentally affects the store's constitutional right to freedom of expression, so as to require the State to show that it is the only available means to abate the nuisance.

This is the second time this case has come before us. On the first appeal we held that such an order would have an incidental impact on the bookseller's First Amendment rights and that the prosecutor had not demonstrated that closing the defendant's store was the "least restrictive means" to abate the nuisance created by some of its customers (People ex rel. Arcara v. Cloud Books, 65 N.Y.2d 324, 491 N.Y.S.2d 307, 480 N.E.2d 1089). The Supreme Court reversed concluding that the bookseller's First Amendment rights would not be implicated or sufficiently affected by an order aimed at curtailing the illegal conduct of some of the store's patrons (see, Arcara v. Cloud Books, 478 U.S. ----, 106 S.Ct. 3172, 92 L.Ed.2d 568). On remand from the Supreme Court we must now decide whether greater protections are afforded the bookseller under the State Constitution's guarantee of freedom of expression (N.Y. Const., art. I, § 8). ^*

The facts are fully set forth in our prior decision and the Supreme Court opinion. Briefly the case reaches us in the following posture. Cloud Books operates a store where it sells adult books and shows movies which are sexually explicit but not obscene. Certain patrons have used the premises for indecent and illegal sexual acts. The owner is aware of the activities but has done nothing to prevent them; however, there is no contention that the owner is criminally responsible.

The District Attorney is also aware of the illegal acts of the patrons, which were observed by an investigator from his office, but has not arrested the offenders or had them criminally prosecuted. Neither has the prosecutor applied for an injunction to prevent the illegal acts from occurring on the premises in the future. Instead he has applied for an order closing the bookstore for a year under Public Health Law, article 23, title II, which is aimed at preventing public nuisances. The order, if granted, will not legally terminate or suspend the defendant's business--it is free to move next door and continue its activities if space is available. The order will only close the offending building or premise where the patrons committed the illegal conduct. Thus during the year the order would be in effect, the place where the illegal acts occurred would be unhallowed ground, unusable by any person for any purpose.

The District Attorney urges that this scheme should not unduly interfere with the bookstore's legitimate activities. On the other hand he argues, somewhat inconsistently, that it would effectively disrupt and prevent the illegal activities of the patrons and therefore, furthers an important governmental interest. The goal of preventing the illegal acts is concededly a legitimate State concern--only the means chosen is in issue. It would appear, without more, that closing the store would be equally disruptive or ineffective with respect to the activities of both the bookstore and its customers. The primary question is whether it implicates the bookseller's constitutional rights of free expression so as to require a balancing of the competing interests.

A divided Supreme Court held that the bookstore's First Amendment rights were not affected because they were not sought to be affected. The majority in that court held that the object of the order is the customers' illegal sexual activity which, it noted, "manifests absolutely no element of protected expression" (478 U.S. at p. ----, 106 S.Ct. at p. 3177). To the extent the order might have an effect on the defendant's legitimate bookselling activities, it was deemed to be too remote to implicate First Amendment concerns. The "least restrictive means test" was held to be applicable only when the government's action was triggered by and directly aimed at curtailing "conduct that has an expressive element".

We, of course, are bound by Supreme Court decisions defining and limiting Federal constitutional rights but "in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States" (People v. Barber, 289 N.Y. 378, 384, 46 N.E.2d 329; see also, People v. P.J. Video, 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556). The Supreme Court's role in construing the Federal Bill of Rights is to establish minimal standards for individual rights applicable throughout the Nation. The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular State.

Freedom of expression in books, movies and the arts, generally, is one of those areas in which there is great diversity among the States. Thus it is an area in which the Supreme Court has displayed great reluctance to expand Federal constitutional protections, holding instead that this is a matter essentially governed by...