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Arcara v. Cloud Books, Inc.

Supreme Court of the United States · 1986 · Constitutional Law

Constitutional LawFirst AmendmentFreedom of SpeechFirst Amendmentadult bookstorepublic nuisancegeneral applicabilitynonexpressive conduct

Facts

Respondents operated an adult bookstore in Kenmore, New York, selling sexually explicit books and magazines and providing booths for viewing sexually explicit movies; no issue was presented that the materials themselves were obscene. During an undercover investigation, a deputy sheriff observed masturbation, fondling, fellatio, and solicitation of prostitution on the premises, including solicitation directed at the deputy, and reported that management was fully aware of the activity. Based on those observations, the district attorney sought closure of the premises under New York's public health nuisance statute, which authorizes abatement and one-year closure of premises used for lewdness, assignation, or prostitution. Respondents denied the allegations and argued that closure would impermissibly burden their First Amendment right to sell books.

Issue

Does the First Amendment bar enforcement of a generally applicable New York statute authorizing closure of premises used for prostitution and lewdness when those premises are also used as an adult bookstore? More specifically, must the closure remedy be subjected to O'Brien-style First Amendment scrutiny because it incidentally burdens bookselling activity?

Rule

The First Amendment is not implicated by enforcement of a generally applicable law against unlawful conduct on physical premises when the regulated conduct has no significant expressive element and the law does not inevitably single out those engaged in First Amendment activity. O'Brien scrutiny applies only when conduct with a significant expressive element is regulated, and heightened scrutiny may also apply when a law directed at nonexpressive activity has the inevitable effect of disproportionately burdening expressive activity, as in Minneapolis Star.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Ohio, the city obtains a court order closing for nine months a comic-book shop operated by Dana Morrow after inspectors document that the owner knowingly allowed the basement to be used for illegal gambling and drug sales. The nuisance ordinance applies to any premises used for specified unlawful conduct, regardless of the kind of business operating there.

The owner argues that the closure order triggers First Amendment scrutiny because the shop sells protected books and magazines. What is the strongest response?

Explanation. Under the majority rule, First Amendment scrutiny does not apply merely because a generally applicable law directed at unlawful, nonexpressive uses of property incidentally burdens a place where protected expression also occurs. Illegal gambling and drug sales have no significant expressive element, and the ordinance is not aimed at books or speech. The fact that Dana sells books does not confer First Amendment immunity from enforcement of the nuisance law.