Arcara v. Cloud Books, Inc.
Does the First Amendment prevent the government from enforcing a generally applicable, content-neutral law authorizing the closure of premises used for prostitution when the premises in question happens to be a bookstore engaged in selling constitutionally protected materials?
The Decision
6-3 decision · Opinion by Warren E. Burger · 1986
Majority Opinion— Warren E. Burgerconcurring ↓dissent ↓
In a 6–3 decision authored by Chief Justice Warren E. Burger, the Supreme Court reversed the New York Court of Appeals and held that the First Amendment did not bar application of the closure statute to Cloud Books. The Court concluded that the New York Public Health Law was directed entirely at illegal conduct — prostitution and lewdness — and was not in any way targeted at expression or expressive activity. Because the law imposed no restraint on speech whatsoever and was completely neutral with respect to any communicative content, the Court held that the First Amendment simply was not triggered.
The majority's core reasoning rested on a critical distinction between laws that target or burden expressive conduct and laws that regulate non-expressive conduct but happen to have incidental effects on a business that also engages in expression. Chief Justice Burger emphasized that the closure statute had nothing to do with any expressive activity; it would apply identically to a restaurant, a hotel, or a warehouse where prostitution occurred. The fact that the particular establishment in this case happened to sell books did not transform the government's enforcement of a conduct-based law into a regulation of speech.
The Court explicitly declined to apply the intermediate scrutiny framework from United States v. O'Brien, which governs laws that restrict expressive conduct. The majority reasoned that the O'Brien test applies when the government targets conduct that has an expressive component, but here the conduct at issue — prostitution — had no expressive element whatsoever. Extending First Amendment scrutiny to every situation where a generally applicable law has some incidental impact on a business that also sells expressive materials would, the Court warned, create an absurd result: bookstores would effectively enjoy an immunity from laws that apply to all other establishments.
The decision made clear that the First Amendment does not require the government to justify its enforcement of speech-neutral, conduct-based laws simply because the party subject to enforcement also happens to engage in expressive activity. The constitutional protections of speech are powerful, the Court noted, but they do not extend to shielding illegal conduct from regulation merely because that conduct occurs in a place where protected expression also takes place.
Concurring Opinions
Justice Sandra Day O'Connor, joined by Justice John Paul Stevens, wrote a concurring opinion agreeing with the result but disagreeing with the majority's reasoning that the First Amendment was wholly irrelevant. O'Connor argued that when a law's enforcement will impose a significant burden on protected expression, the O'Brien intermediate scrutiny test should apply, but she concluded that the closure order satisfied that test because the government's interest in combating prostitution was substantial and unrelated to the suppression of expression.
Dissenting Opinions
William J. Brennan Jr.joined by Thurgood Marshall
Justice Brennan argued that the closure order would directly and completely suppress constitutionally protected bookselling activity, and that whenever government action has such an immediate and devastating effect on protected expression, the First Amendment must require at minimum some form of heightened scrutiny — regardless of whether the underlying law targets speech or conduct.
- The closure order was not a minor incidental burden on expression — it would entirely eliminate the bookstore's ability to engage in the sale of protected materials, making the First Amendment implications direct and severe.
- The government had ample alternative means to combat the illegal conduct, such as criminal prosecution of individuals engaging in prostitution, that would not require shuttering an entire establishment engaged in protected expression.
- By holding the First Amendment entirely inapplicable, the majority created a dangerous rule that could allow the government to close any bookstore, newspaper office, or other expressive business by pointing to unrelated illegal conduct on the premises, without any constitutional check.
Harry A. Blackmun
Justice Blackmun dissented separately, arguing that the majority was wrong to hold the First Amendment completely irrelevant whenever a speech-neutral law is at issue. He contended that when the government's chosen remedy would directly and substantially impair protected expression, the Constitution demands at least a balancing analysis.
- The critical question should not be whether the law targets speech, but whether the government's particular enforcement action will have the direct effect of suppressing a significant amount of protected expression.
- Even under the deferential O'Brien framework, the closure order was constitutionally suspect because less speech-restrictive means of enforcing the prostitution laws were readily available to the government.
Background & Facts
In the early 1980s, Salvatore R. Arcara, the District Attorney of Erie County, New York, received reports of illegal sexual activity taking place at an adult bookstore called Cloud Books, located in North Tonawanda, New York. To investigate, the district attorney's office sent undercover officers into the establishment. Over the course of several visits, these investigators observed and documented instances of prostitution and other illegal sexual conduct occurring on the bookstore's premises. Based on these findings, the district attorney sought a court order to close the bookstore under Section 2320(1) of the New York Public Health Law — a statute that authorized the closure of any building found to be used for the purpose of prostitution, lewdness, or similar illegal sexual activity. Importantly, this law applied to any type of establishment — hotels, bars, apartments, or stores — and had nothing specific to do with bookstores, speech, or the content of any materials sold.
Cloud Books, Inc., the operator of the bookstore, fought back. The company argued that closing the entire bookstore would effectively suppress the sale of books and other expressive materials protected by the First Amendment. In their view, shutting the store was no different from a government-imposed prior restraint on protected speech, and such an action required the heightened procedural safeguards the Constitution demands before the government may suppress expression.
The case moved through the New York state courts. The trial court initially granted the closure order. However, the Appellate Division of the New York Supreme Court reversed, expressing concern about the First Amendment implications of shuttering a bookseller. The New York Court of Appeals — the state's highest court — affirmed that reversal. The Court of Appeals held that because the closure order would directly and immediately suppress the bookstore's sale of constitutionally protected materials, the First Amendment required that the order could not stand without the procedural safeguards normally required before the government silences expression.
The U.S. Supreme Court agreed to hear the case to resolve the important constitutional question of whether the First Amendment provides special protection when a law directed at illegal conduct happens to be applied against an establishment that also sells books or engages in other protected expression. The case raised a fundamental question about the boundary between regulating conduct and restricting speech.
The Arguments
The district attorney argued that the New York closure statute was a generally applicable law aimed entirely at illegal conduct — specifically prostitution — and had nothing to do with the bookstore's sale of expressive materials. Because the law was content-neutral and targeted non-expressive criminal activity, the First Amendment simply was not implicated by its enforcement.
- The Public Health Law applied to any premises used for prostitution, regardless of whether books, food, or any other goods were sold there — it was entirely indifferent to expression.
- The closure was triggered solely by the illegal sexual conduct observed on the premises, not by anything related to the content of the books or materials sold.
- Requiring First Amendment scrutiny every time a generally applicable law happens to affect a business that also engages in expressive activity would grant bookstores and similar establishments an immunity from regulation not enjoyed by any other business.
Cloud Books argued that the practical effect of the closure order was to completely shut down a business engaged in constitutionally protected bookselling, and that the First Amendment required, at a minimum, heightened scrutiny and procedural safeguards before the government could take such action.
- The closure order would entirely suppress the bookstore's protected expressive activity — the sale of books and other materials — making it functionally equivalent to a prior restraint on speech.
- The government had less restrictive alternatives available, such as arresting the individuals engaging in illegal conduct, rather than shutting down the entire bookstore.
- The First Amendment should require the government to meet a higher burden when its enforcement actions will directly and completely eliminate a forum for protected expression.