A New York statute authorizes closure of a building found to be
a public health nuisance because it was being used as a place for
prostitution and lewdness. After a county Deputy Sheriff's
undercover investigation of respondents' "adult" bookstore
disclosed that illicit sexual activities, including solicitation of
prostitution, occurred on the premises, a civil complaint was filed
against respondents seeking closure of the premises under the
statute. Respondents answered by alleging,
inter alia,
that a closure would impermissibly interfere with their First
Amendment right to sell books on the premises, and that the closure
statute was not intended to apply to establishments other than
houses of prostitution. The New York trial court denied
respondents' motion for a summary judgment, holding that the
statute applied to respondents. The Appellate Division affirmed.
The New York Court of Appeals reversed on First Amendment grounds.
Applying the test of
United States v. O'Brien,
391 U. S. 367, for
determining the validity of a statute regulating conduct that has
an expressive element, the court held that the closure statute
failed the part of the
O'Brien test that requires the
statute to be no broader than necessary to achieve its purpose,
because the closure order was much broader than necessary to
achieve the restriction against illicit sexual activities and
because an injunction against continuing those activities could
achieve the same effect without restricting respondents'
bookselling activities.
Held: The First Amendment does not bar enforcement of
the closure statute against respondents' bookstore.
United
States v. O'Brien, supra, has no relevance to a statute
directed at imposing sanctions on nonexpressive activity, and the
sexual activities carried on in this case manifest absolutely no
element of protected expression. The closure statute is directed at
unlawful conduct having nothing to do with books or other
expressive activity. Bookselling on premises used for prostitution
does not confer First Amendment coverage to defeat a statute aimed
at penalizing and terminating illegal uses of premises. Pp.
478 U. S.
702-707.
65 N.Y.2d 324, 480 N.E.2d 1089, reversed.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
O'CONNOR,
Page 478 U. S. 698
J., filed a concurring opinion, in which STEVENS, J., joined,
post, p.
478 U. S. 708.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
478 U. S.
708.
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'
Page 478 U. S. 699
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
Page 478 U. S. 700
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' bookselling 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
Page 478 U. S. 701
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
Page 478 U. S. 702
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. [
Footnote
1] 474 U.S. 978 (1985). We reverse.
II
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 'nonspeech'
elements are combined in the same course of conduct,
Page 478 U. S. 703
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
391 U. S.
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
Page 478 U. S. 704
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 nonexpressive activity, since the burden
of the tax inevitably fell disproportionately -- in fact, almost
exclusively -- upon the shoulders of newspapers exercising 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,
394 U. S. 139 (1969)
(antitrust laws);
Lorain Journal Co. v. United States,
342 U. S.
143,
342 U. S. 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,
327 U. S. 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,
326 U. S. 6-7, 19-20 (1945)
(antitrust laws);
Associated Press v. NLRB, 301 U. S.
103,
301 U. S. 132-133 (1937)
(National Labor Relations Act);
see also Branzburg v.
Hayes, 408 U. S. 665 (1972)
(enforcement of subpoenas)."
Id. at
460 U. S.
581.
III
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
Page 478 U. S. 705
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,
413 U. S. 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. [
Footnote 2] In any event, this argument proves
too
Page 478 U. S. 706
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, [
Footnote 3]
or where a statute based on a
Page 478 U. S. 707
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. Bookselling 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. [
Footnote 4]
The judgment of the New York Court of Appeals is
Reversed.
Page 478 U. S. 708
[
Footnote 1]
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).
[
Footnote 2]
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.
[
Footnote 3]
The dissent asserts that we have previously struck down
"[g]enerally applicable statutes that purport to regulate nonspeech
. . . if they unduly penalize speech, political or otherwise."
Post at
478 U. S. 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 anti-noise
ordinance);
Marsh v. Alabama, 326 U.
S. 501 (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.
[
Footnote 4]
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 public
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
(1985). Respondents in this case made no such assertion before the
trial court.
JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins,
concurring.
I agree that the Court of Appeals erred in applying a First
Amendment standard of review where, as here, the government is
regulating neither speech nor an incidental, nonexpressive effect
of speech. Any other conclusion would lead to the absurd result
that any government action that had some conceivable
speech-inhibiting consequences, such as the arrest of a newscaster
for a traffic violation, would require analysis under the First
Amendment. If, however, a city were to use a nuisance statute as a
pretext for closing down a bookstore because it sold indecent books
or because of the perceived secondary effects of having a purveyor
of such books in the neighborhood, the case would clearly implicate
First Amendment concerns and require analysis under the appropriate
First Amendment standard of review. Because there is no suggestion
in the record or opinion below of such pretextual use of the New
York nuisance provision in this case, I concur in the Court's
opinion and judgment.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
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, 480 N.E.2d 1089, 1091 (1985);
see also ante at
478 U. S. 698.
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,
361 U. S. 150
(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
Page 478 U. S. 709
conduct of patrons.
See ante at
478 U. S.
698-699, and
478 U. S. 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."
See ante at
478 U. S.
705-706, n. 2.
To the contrary, the Court has said repeatedly that a statute
challenged under the First Amendment "must be tested by its
operation and effect."
Near v. Minnesota ex rel. Olson,
283 U. S. 697,
283 U. S. 708
(1931).
See also Schad v. Mount Ephraim, 452 U. S.
61,
452 U. S. 68
(1981);
Southeastern Promotions, Ltd. v. Conrad,
420 U. S. 546,
420 U. S. 552
(1975).
"In every case, therefore, where legislative abridgment of
[First Amendment] rights is asserted, the courts should be astute
to examine the effect of the challenged legislation."
Schneider v. State, 308 U. S. 147,
308 U. S. 161
(1939).
Generally applicable statutes that purport to regulate nonspeech
repeatedly have been struck down if they unduly penalize speech,
political or otherwise.
See, e.g., Marsh v. Alabama,
326 U. S. 501
(1946) (trespass);
Cantwell v. Connecticut, 310 U.
S. 296 (1940) (breach of peace);
Schneider v. State,
supra, (littering).
Cf. Grayned v. City of Rockford,
408 U. S. 104,
408 U. S.
107-108 (1972) (antinoise ordinance).
The legislation in
Marsh, Cantwell, and
Schneider, as in this case, did not attempt to censor
particular speech,
cf. Near v. Minnesota ex rel. Olson,
supra, or to burden disproportionately a particular speaker,
cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575
(1983). The State's concern there, as here, was to preserve the
character of the community through the exercise of police power.
And state action was triggered not by the speech itself, but by
conduct. In
Cantwell, for example, the Court
Page 478 U. S. 710
pointed out that the speech itself "invaded no right or interest
of the public." 310 U.S. at
310 U. S. 309.
Rather, the rage of the listeners led to state action. In
Schneider, police arrested the distributors of handbills
even though the litter was caused by other people throwing the
handbills away. 308 U.S. at
308 U. S. 162.
In each of these cases, the State's legitimate goal in regulating
the effects of speech collided with First Amendment freedoms, and
the Court therefore balanced the State's interests against the
burden imposed on the exercise of the fundamental right.
Cf.
Young v. American Mini Theatres, Inc., 427 U. S.
50 (1976) (secondary effects of adult theaters);
Renton v. Playtime Theatres, Inc., 475 U. S.
41 (1986) (same);
United States v. Albertini,
472 U. S. 675,
472 U. S.
687-688 (1985) (earlier conduct threatened military
security).
*
At some point, of course, the impact of state regulation on
First Amendment rights becomes so attenuated that it is easily
outweighed by the state interest. But when a State directly and
substantially impairs First Amendment activities, such as by
shutting down a bookstore, I believe that the State must show, at a
minimum, that it has chosen the least restrictive means of pursuing
its legitimate objectives.
E.g., Cantwell, supra, at
310 U. S. 308.
The closure of a bookstore can no more be compared to a traffic
arrest of a reporter,
see ante at
478 U. S. 708
(O'CONNOR, J., concurring), than the closure
Page 478 U. S. 711
of a church could be compared to the traffic arrest of its
clergyman.
A State has a legitimate interest in forbidding sexual acts
committed in public, including a bookstore. An obvious method of
eliminating such acts is to arrest the patron committing them. But
the statute in issue does not provide for that. Instead, it imposes
absolute liability on the bookstore simply because the activity
occurs on the premises. And the penalty -- a mandatory 1-year
closure -- imposes an unnecessary burden on speech. Of course,
"linking the words
sex' and `books,'" see ante at
478 U. S. 705,
is not enough to extend First Amendment protection to illegal
sexual activity, but neither should it suffice to remove First
Amendment protection from books situated near the site of such
activity. The State's purpose in stopping public lewdness cannot
justify such a substantial infringement of First Amendment rights.
First Amendment interests require the use of more "sensitive
tools." Speiser v. Randall, 357 U.
S. 513, 357 U. S. 525
(1958).
Petitioner has not demonstrated that a less restrictive remedy
would be inadequate to abate the nuisance. The Court improperly
attempts to shift to the bookseller the responsibility for finding
an alternative site. But surely the Court would not uphold a city
ordinance banning all public debate on the theory that the
residents could move somewhere else. "
[O]ne is not to have the
exercise of his liberty of expression in appropriate places
abridged on the plea that it may be exercised in some other
place.'" Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
at 420 U. S. 556,
quoting Schneider v. State, 308 U.S. at 308 U. S. 163.
Moreover, respondents allege that changes in local zoning laws
prevent them from relocating. See Brief for Respondents
10-11; Tr. of Oral Arg. 26, 31-32. Because the statute is not
narrowly tailored to further the asserted governmental interest, it
is unconstitutional as applied to respondents.
The Court's decision creates a loophole through which counties
like Erie,
See also New York v. P. J. Video,
Inc.,
Page 478 U. S. 712
475 U. S. 868
(1986);
New York v. Uplinger, 467 U.
S. 246 (1984), can suppress "undesirable," protected
speech without confronting the protections of the First Amendment.
Until today, the Court has required States to confine any
bookbanning to materials that are determined, through
constitutionally approved procedures, to be obscene.
See Marcus
v. Search Warrant, 367 U. S. 717
(1961);
Freedman v. Maryland, 380 U. S.
51,
380 U. S. 58-59
(1965). Until today, States could enjoin the future dissemination
of adult fare as a nuisance only by "adher[ing] to more narrowly
drawn procedures than is necessary for the abatement of an ordinary
nuisance."
See Vance v. Universal Amusement Co.,
445 U. S. 308,
445 U. S. 315
(1980). A State now can achieve a sweeping result, without any
special protection for the First Amendment interests, so long as
the predicate conduct -- which could be as innocent as repeated
meetings between a man and a woman -- occurs on the premises. That
a bookstore might meet the heavy burden of proving selective
prosecution,
see ante at
478 U. S. 707,
n. 4;
ante at
478 U. S. 708
(O'CONNOR, J., concurring);
see also Wayte v. United
States, 470 U. S. 598,
470 U. S.
607-610 (1985);
Kuzinich v. County of Santa
Clara, 689 F.2d 1345, 1349 (CA9 1982);
State v.
Flynt, 63 Ohio St.2d 132, 133, 407 N.E.2d 15, 17-18,
cert.
granted, 449 U.S. 1033 (1980),
cert. dism'd,
451 U. S. 619
(1981), hardly guarantees the prompt, constitutionally required
review necessary to minimize deterrence of protected speech,
see New York v. P. J. Video, Inc., 475 U.S. at
475 U. S. 873.
And even when a State's only intention is to eliminate sexual acts
in public, a 1-year closure has a severe and unnecessary impact on
the First Amendment rights of booksellers.
If the freedom of speech protected by the First Amendment is to
retain its "transcend[ent] value,"
Speiser v. Randall, 357
U.S. at
357 U. S. 525,
First Amendment interests must be given special protection.
Marsh v. Alabama, 326 U.S. at
326 U. S.
509.
"'Freedoms such as these are protected not only against
heavy-handed frontal attack, but also from being stifled
Page 478 U. S. 713
by more subtle governmental interference.'"
Healy v. James, 408 U. S. 169,
408 U. S. 183
(1972), quoting
Bates v. Little Rock, 361 U.
S. 516,
361 U. S. 523
(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.
* Our past cases cannot sensibly be distinguished on the ground
that they involved regulation of nonexpressive effects of speech,
or regulation of nonspeech "intimately related to expressive
conduct,"
ante at
478 U. S. 706, n. 3; our concern clearly has been to
avoid any exercise of governmental power that "unduly suppress[es]"
First Amendment interests.
Cantwell v. Connecticut,
310 U. S. 296,
310 U. S. 308
(1940). Would the Court feel differently about the present case if
respondents had introduced evidence that the illegal sexual
activity at their bookstore had been spurred by the passages read
by browsing customers? Under the Court's apparent theory,
paradoxically, a bookstore which sold books that induced such
activity would have more protection than a bookstore whose wares
had no effect on the sexual behavior of its clientele.