Facts
- Cloud Books, Inc. operated an adult bookstore in Kenmore, New York, selling sexually explicit materials and showing sexually explicit films; the materials’ obscenity was not at issue.
- An undercover investigation found illicit sexual activities on the premises, including solicitation of prostitution.
- The Erie County District Attorney brought a civil action under a New York public health nuisance statute authorizing closure for one year of buildings used for “lewdness, assignation, or prostitution.”
- The bookstore argued that applying the closure remedy would impermissibly interfere with First Amendment bookselling and that the statute was intended for houses of prostitution, not bookstores.
- New York trial and intermediate appellate courts held the statute applied and denied summary judgment for the bookstore.
- The New York Court of Appeals reversed on First Amendment grounds, reasoning that a one-year closure was broader than necessary because narrower relief could target the illegal conduct without shutting down bookselling.
- The U.S. Supreme Court granted review.
Issues
- Whether the First Amendment prohibits enforcement of a nuisance-abatement statute that closes a bookstore because illegal, nonexpressive sexual activity (prostitution and lewdness) occurs on the premises.
- Whether a closure remedy that incidentally burdens protected expression must be evaluated under the intermediate-scrutiny framework used for regulations of expressive conduct.
Decision
- The Supreme Court reversed the New York Court of Appeals.
- The Court held that the First Amendment did not bar applying the nuisance-abatement closure statute to the bookstore.
- The Court concluded that the statute targeted nonexpressive illegal conduct and was not a regulation of speech or of expressive conduct.
- The Court declined to apply the United States v. O’Brien framework because the regulated activity—prostitution and lewdness—lacked an expressive component.
- Justice O’Connor (joined by Justice Stevens) concurred, emphasizing that First Amendment scrutiny could be appropriate if enforcement were aimed at suppressing speech or selectively targeted expressive businesses.
- Justice Blackmun (joined by Justices Brennan and Marshall) dissented, viewing the one-year padlocking as a substantial burden on protected dissemination and as overly broad given less restrictive alternatives.
Legal Principles
- A law directed at unlawful, nonexpressive conduct does not become subject to First Amendment scrutiny merely because it is enforced against premises where protected expression also occurs.
- The O’Brien test for regulations of expressive conduct is inapplicable when the targeted conduct has no significant expressive element.
- Incidental effects on speech from enforcing laws aimed at non-speech-related harms generally do not trigger First Amendment review, absent targeting of expression or enforcement that disproportionately singles out expressive enterprises.
- First Amendment concerns may arise where a nuisance or similar statute is applied with the objective of suppressing speech or in a discriminatory pattern against bookstores or other protected speakers.
Conclusion
The Court upheld a one-year closure order against a bookstore under a nuisance statute aimed at prostitution and lewdness, holding that the First Amendment does not shield a bookselling venue from sanctions for nonexpressive illegal conduct occurring on its premises, while leaving room for scrutiny where such laws are used to target speech.