ARCARA, DISTRICT ATTORNEY OF ERIE COUNTY v. CLOUD BOOKS, INC., dba VILLAGE BOOK & NEWS STORE, et al.
No. 85-437.
Argued April 29, 1986
Decided July 7, 1986
Burger, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. O’Connor, J., filed a concurring opinion, in which Stevens, J., joined, post, p. 708. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 708.
John J. DeFranks argued the cause for petitioner. With him on the briefs were Richard J. Arcara, pro se, and Louis A. Haremski.
Paul John Cambria, Jr., argued the cause and filed a brief for respondents.
Frederick A. 0. Schwarz, Jr., and Leonard Koerner filed a brief for the city of New York as amicus curiae urging reversal.
Steven R. Shapiro, Burt Neuborne, and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Edward Cooper and James J. Clancy filed a brief for the city of Santa Ana, California, as amicus curiae.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to decide whether the First Amendment bars enforcement of a statute authorizing closure of a premises found to be used as a place for prostitution and lewdness because the premises are also used as an adult bookstore.
I
A
Respondents own and operate'"-the “Village Books and News Store” in Kenmore, New York. The establishment characterizes itself as an “adult” bookstore and'sells sexually explicit books and magazines with booths available for the viewing of sexually explicit movies. No issue is presented with respect to whether the movies or other materials available at respondents’ store are obscene pornographic materials.
During September and October 1982, the Erie County Sheriff’s Department conducted an undercover investigation into reported illicit sexual activities occurring on respondents’ premises. A Deputy Sheriff personally observed instances of masturbation, fondling, and fellatio by patrons on the premises of the store, all within the observation of the proprietor. He also observed instances of solicitation of prostitution, and was himself solicited on at least four occasions by men who offered to perform sexual acts in exchange for money. The Deputy Sheriff reported that the management of the “Village Books and News Store” was fully aware of the sexual activity on the premises. App. to Pet. for Cert. A-54, A-56, A-57, A-58.
B
The results of the undercover investigation formed the basis of a civil complaint against respondents seeking closure of the premises under §2321 of the New York Public Health Law. Section 2320 of the New York Public Health Law defines places of prostitution, lewdness, and assignation as public health nuisances:
“1. Whoever shall erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, or prostitution is guilty of maintaining a nuisance.
“2. The building, erection, or place, or the ground itself, in or upon which any lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments, and movable property used in conducting or maintaining such nuisance, are hereby declared to be a nuisance and shall be enjoined and abated as hereafter provided.” N. Y. Pub. Health Law §2320 (McKinney 1985).
Section 2329 provides for the closure of any building found to be a public health nuisance under § 2320:
“1. If the existence of the nuisance be admitted or established in an action as provided in this article, or in a criminal proceeding in any court, an order of abatement shall be entered as part of the judgment in the case, which order . . . shall direct the effectual closing of the building, erection or place against its use for any purpose, and so keeping it closed for a period of one year . . . N. Y. Pub. Health Law §2329 (McKinney 1985).
Section 2321 of the statute authorizes a suit by the district attorney, among others, to enforce its provisions.
Respondents answered the complaint by denying the allegations of the Deputy Sheriff that sexual activities occurred on the premises with respondents’ knowledge, and also by asserting that a closure of the premises would impermissibly interfere with their First Amendment right to sell books on the premises. Respondents moved for partial summary judgment on these First Amendment grounds, and also advanced an argument that the statute was not intended to reach establishments other than houses of prostitution in the traditional sense. The Trial Division of the New York Supreme Court, Special Term, denied the motion for summary judgment, holding that the statute was applicable to respondents; it rejected respondents’ First Amendment claims as well, reasoning that the closure order sought did not involve a prior restraint of materials presumptively protected by the First Amendment. It also held that respondents’ book-selling activities could not be employed as “a curtain behind which illegal activity can be freely encouraged and conducted.”
The Appellate Division, Fourth Department, affirmed. People ex rel. Arcara v. Cloud Books, Inc., 101 App. Div. 2d 163, 475 N. Y. S. 2d 173 (1984). The Appellate Division agreed with the trial court that the statute applied to the premises in which respondents’ bookstore was operated; closure of the premises would not violate the First Amendment since the admittedly unlawful conduct and activities giving rise to the abatement action were not presumptively protected expressive conduct, and respondents’ sales of books on the premises did not shield it from enforcement of the closure statute. The Appellate Division granted respondents’ motion for leave to appeal to the New York Court of Appeals, and certified both the statutory question whether the statute reached establishments other than houses of prostitution and the First Amendment issue.
The New York Court of Appeals reversed. People ex rel. Arcara v. Cloud Books, Inc., 65 N. Y. 2d 324, 480 N. E. 2d 1089 (1985). That court agreed that the Public Health Law applied to establishments other than houses of prostitution, but reversed on First Amendment grounds. The court relied on cases from other jurisdictions which analogized an order closing a bookstore or movie theater based upon previous distribution of obscene materials to an unconstitutional prior restraint. E. g., Gayety Theatres, Inc. v. City of Miami, 719 F. 2d 1550 (CA11 1983); General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So. 2d 668 (1975), cert. denied, 425 U. S. 904 (1976); People ex rel. Busch v. Projection Room Theater, 17 Cal. 3d 42, 550 P. 2d 600, cert. denied sub nom. Van de Kamp v. Projection Room Theater, 429 U. S. 922 (1976).
The New York Court of Appeals relied on the impact of the closure order upon respondents’ protected bookselling activities, and concluded that that circumstance required scrutiny under this Court’s First Amendment analysis of regulations aimed at nonspeech activity but having an incidental effect on speech. Purporting to apply the four-part test of United States v. O’Brien, 391 U. S. 367 (1968), the New York Court of Appeals determined that the closure remedy fell within the constitutional power of the State; that the closure remedy furthered a substantial state interest in thwarting prostitution; and that the purpose of the closure remedy was unrelated to the suppression of speech.
Notwithstanding that analysis, the court determined that the closure remedy failed the fourth part of the O’Brien test, which requires that the statute incidentally restricting speech be no broader than necessary to achieve its purpose. The court reasoned that upon the summary judgment record before it, an order closing the premises for a year was much broader than necessary to achieve the restriction against illicit commercial sexual activities and that an injunction against continuing the admittedly illegal activity on the premises could achieve the same effect without restricting respondents’ bookselling activities.
We granted certiorari. 474 U. S. 978 (1985). We reverse.
I — I
This Court has applied First Amendment scrutiny to a statute regulating conduct which has the incidental effect of burdening the expression of a particular political opinion. United States v. O’Brien, supra. In O’Brien, the Court considered the First Amendment ramifications of a statute which imposed criminal sanctions on one who “knowingly destroys, knowingly mutilates, or in any manner changes” a draft registration certificate. 50 U. S. C. App. § 462(b). The O’Brien Court noted that on its face the statute did not regulate conduct that was necessarily expressive, since the destruction of a draft card is not ordinarily expressive conduct. The defendant in O’Brien had, as respondents here do not, at least the semblance of expressive activity in his claim that the otherwise unlawful burning of a draft card was to “carry a message” of the actor’s opposition to the draft. As the Court noted in O’Brien:
“This Court has held that when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 391 U. S., at 376-377 (footnotes omitted).
The Court determined that the prohibition against mutilation of draft cards met these requirements and could constitutionally be applied against one who publicly burned his draft card as a symbolic protest.
We have applied O’Brien to other cases involving governmental regulation of conduct that has an expressive element. In Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), we considered the application of a ban on camping and sleeping in Lafayette Park and on the Mall in Washington, D. C., to demonstrators who sought to sleep overnight in these parks as a protest of the plight of homeless people. Again in United States v. Albertini, 472 U. S. 675, (1985), we considered a protester’s conviction for reentering a military base after being subject to an order barring him from entering that establishment based on his previous improper conduct on the base. In each of these cases we considered the expressive element of the conduct regulated and upheld the regulations as constitutionally permissible.
We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities. In Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983), we struck down a tax imposed on the sale of large quantities of newsprint and ink because the tax had the effect of singling out newspapers to shoulder its burden. We imposed a greater burden of justification on the State even though the tax was imposed upon a non-expressive activity, since the burden of the tax inevitably fell disproportionately — in fact, almost exclusively — upon the shoulders of newspapers excercising the constitutionally protected freedom of the press. Even while striking down the tax in Minneapolis Star, we emphasized:
“Clearly, the First Amendment does not prohibit all regulation of the press. It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems. See, e. g., Citizen Publishing Co. v. United States, 394 U. S. 131, 139 (1969) (antitrust laws); Lorain Journal Co. v. United States, 342 U. S. 143, 155-156 (1951) (same); Breard v. Alexandria, 341 U. S. 622 (1951) (prohibition of door-to-door solicitation); Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 192-193 (1946) (Fair Labor Standards Act); Mabee v. White Plains Publishing Co., 327 U. S. 178 (1946) (same); Associated Press v. United States, 326 U. S. 1, 6-7, 19-20 (1945) (antitrust laws); Associated Press v. NLRB, 301 U. S. 103, 132-133 (1937) (National Labor Relations Act); see also Branzburg v. Hayes, 408 U. S. 665 (1972) (enforcement of subpoenas).” Id., at 581.
Ill
The New York Court of Appeals held that the O’Brien test for permissible governmental regulation was applicable to this case because the closure order sought by petitioner would also impose an incidental burden upon respondents’ bookselling activities. That court ignored a crucial distinction between the circumstances presented in O’Brien and the circumstances of this case: unlike the symbolic draft card burning in O’Brien, the sexual activity carried on in this case manifests absolutely no element of protected expression. In Paris Adult Theatre I v. Slaton, 413 U. S. 49, 67 (1973), we underscored the fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct by the diaphanous device of attributing protected expressive attributes to that conduct. First Amendment values may not be invoked by merely linking the words “sex” and “books.”
Nor does the distinction drawn by the New York Public Health Law inevitably single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden, as did the tax struck down in Minneapolis Star. As we noted in Minneapolis Star, neither the press nor booksellers may claim special protection from governmental regulations of general applicability simply by virtue of their First Amendment protected activities. If the city imposed closure penalties for demonstrated Fire Code violations or health hazards from inadequate sewage treatment, the First Amendment would not aid the owner of premises who had knowingly allowed such violations to persist.
Nonetheless, respondents argue that the effect of the statutory closure remedy impermissibly burdens its First Amendment protected bookselling activities. The severity of this burden is dubious at best, and is mitigated by the fact that respondents remain free to sell the same materials at another location. In any event, this argument proves too much, since every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities. One liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim. Cf. Buckley v. Valeo, 424 U. S. 1 (1976). Similarly, a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner’s claim to a prison environment least restrictive of his desire to speak to outsiders. See Pell v. Procunier, 417 U. S. 817 (1974); see also Jones v. North Carolina Prisoners Union, 433 U. S. 119 (1977).
It is true that the closure order in this case would require respondents to move their bookselling business to another location. Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to “least restrictive means” scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O’Brien, or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.
The New York Court of Appeals thus misread O’Brien, which has no relevance to a statute directed at imposing sanctions on nonexpressive activity. The legislation providing the closure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity. Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises. The legislature properly sought to protect the environment of the community by directing the sanction at premises knowingly used for lawless activities.
The judgment of the New York Court of Appeals is
Reversed.
The decision of the New York Court of Appeals conflicts with decisions of the Virginia Supreme Court and the Pennsylvania Superior Court which have upheld the closure of bookstores under public health nuisance statutes based upon illicit sexual activities occurring on the premises. Commonwealth v. Croatan Books, Inc., 228 Va. 383, 323 S. E. 2d 86 (1984); Commonwealth ex rel. Lewis v. Allouwill, 330 Pa. Super. 32, 478 A. 2d 1334 (1984).
For the same reason, we must reject the Court of Appeals’ reasoning analogizing the closure order sought in this case to an unconstitutional prior restraint under Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited — indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.
The dissent asserts that we have previously struck down “[generally applicable statutes that purport to regulate nonspeech ... if they unduly penalize speech, political or otherwise.” Post, at 709. This is obviously a correct statement of holdings which are not relevant here. In each of the cases cited by the dissent, the “nonspeech” which drew sanctions was intimately related to expressive conduct protected under the First Amendment. See Grayned v. City of Rockford, 408 U. S. 104 (1972) (demonstration results in prosecution under antinoise ordinance); Marsh v. Alabama, 326 U. S. 601 (1946) (trespass in order to distribute religious literature); Cantwell v. Connecticut, 310 U. S. 296 (1940) (breach of peace prosecution based upon distribution of religious literature). Here, however, the “nonspeech” conduct subject to a general regulation bears absolutely no connection to any expressive activity.
Respondents assert that closure of their premises is sought as a pretext for suppression of First Amendment protected expression. However, there is no suggestion on the record before us that the closure of respondents’ bookstore was sought under the publie health nuisance statute as a pretext for the suppression of First Amendment protected material. Were respondents able to establish the existence of such a speech suppressive motivation or policy on the part of the District Attorney, they might have a claim of selective prosecution. See Wayte v. United States, 470 U. S. 598 (1986). Respondents in this case made no such assertion before the trial court.
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