Arcara v. Cloud Books, Inc.

Background

Respondents run an adult bookstore in Kenmore, New York, that sells sexually explicit books and shows sexually explicit movies. Local law enforcement carried out an undercover investigation and a deputy saw patrons masturbating, fondling, and performing oral sex on the store premises. The Erie County district attorney sued under New York’s public health nuisance law, which allows courts to close buildings used for prostitution, lewdness, or assignation and to keep them closed for one year.

Reasoning

The central question was whether enforcing that closure law against a bookstore also used for illegal sexual activity violates the First Amendment. The Supreme Court’s majority said no. It reasoned that the conduct observed was nonexpressive sexual activity, not protected speech, and that the statute targets unlawful uses of premises rather than the sale of books. The Court reversed the New York Court of Appeals, which had applied a test for incidental burdens on speech and had found the one-year closure broader than necessary.

Real world impact

The ruling means prosecutors can pursue closure orders against locations where prostitution or lewd acts occur even if expressive materials are sold there. The decision limits First Amendment protection in cases where the government is regulating plainly illegal conduct, not speech. The Court noted that respondents could still sell materials at a different location and that no record showed a pretext to suppress bookselling.

Dissents or concurrances

Justice O’Connor concurred, stressing that if a nuisance law were used as a pretext to shut a bookstore for its content, First Amendment review would apply. Justice Blackmun dissented, arguing a mandatory one-year closure is an excessive burden on free expression and that the State must use less restrictive means.