Parties: Arcara v. Cloud Books, Inc.
Date: 1986-07-07
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Paragraph: 32 - Respondent Cloud Books, Inc., has a bookstore that sells sexually explicit, but not allegedly obscene, publications. See People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324, 326, 491 N.Y.S.2d 307, 309, 480 N.E.2d 1089, 1091 (1985); see also ante, at 1. The Court holds that the store can be shut down for one year as a nuisance if it is found to be a place "in or upon which any lewdness, assignation, or prostitution . . . exists," in violation of New York's Public Health Law §§ 2320 and 2329 (McKinney 1985). Despite the obvious role that commercial bookstores play in facilitating free expression, see, e.g., Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959), the Court today concludes that a closure order would raise no First Amendment concerns, apparently because it would be triggered, not by respondents' sale of books, but by the nonexpressive conduct of patrons. See ante, at 698-699 and 706, n. 2. But the First Amendment, made applicable to the States by the Fourteenth Amendment, protects against all laws "abridging the freedom of speech"—not just those specifically directed at expressive activity. Until today, this Court has never suggested that a State may suppress speech as much as it likes, without justification, so long as it does so through generally applicable regulations that have "nothing to do with any expressive conduct."
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Paragraph: 40 - If the freedom of speech protected by the First Amendment is to retain its "transcend[ent] value," Speiser v. Randall, 357 U.S., at 525, 78 S.Ct., at 1341, First Amendment interests must be given special protection. Marsh v. Alabama, 326 U.S., at 509, 66 S.Ct., at 280. " 'Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' " Healy v. James, 408 U.S. 169, 183, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266 (1972), quoting Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960). Since I agree with the New York Court of Appeals that the mandatory closure requirement is unconstitutional as applied to respondents, I dissent from the reversal of that court's judgment.
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Paragraph: 25 - 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, 96 S.Ct. 612, 46 L.Ed.2d 659 (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.
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Paragraph: 23 - 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.
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