Arcara v. Cloud Books, Inc.

1986 United States Supreme Court case

Arcara v. Cloud Books, Inc.

Supreme Court of the United States

Argued April 29, 1986
Decided July 7, 1986
Full case name| Arcara, District Attorney of Erie County v. Cloud Books, Inc., DBA Village Book & News Store, et al.
Docket no.| 85-437
Citations| 478 U.S. 697 (more)

106 S. Ct. 3172

Argument| Oral argument
Case history
Prior| Denial of summary judgment affirmed, People ex rel. Arcara v. Cloud Books, Inc., 101 A.D.2d 163 (N.Y. App. Div. 1984); modified to grant partial summary judgment, 65 N.Y.2d 324, 480 N.E.2d 1089 (N.Y. 1985); cert. granted, 474 U.S. 978 (1985)
Subsequent| People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553. 503 N.E.2d 492 (N.Y. 1986)
Court membership

Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan Jr. * Byron White
Thurgood Marshall * Harry Blackmun
Lewis F. Powell Jr. * William Rehnquist
John P. Stevens * Sandra Day O'Connor
Case opinions
Majority| Burger, joined by White, Powell, Rehnquist, Stevens, O'Connor
Concurrence| O'Connor, joined by Stevens
Dissent| Blackmun, joined by Brennan, Marshall
Laws applied
U.S. Const. amend. I

Arcara v. Cloud Books Inc., 478 U.S. 697 (1986), was a United States Supreme Court case about the First Amendment and whether freedom of speech was violated by shutting down a bookstore because of illicit sexual activities occurring there. The court held that the closure was aimed at nonexpressive activity and its incidental burden on speech was not subject to any First Amendment scrutiny.

In reaching its decision, the 6–3 majority identified two conditions when it would apply the First Amendment to incidental effects on speech: when the enforcement action is aimed at significantly expressive conduct, or when the law inevitably affects speech disproportionately. Neither condition was applicable to the case. This distinguished Arcara from the draft card burning case United States v. O'Brien (1968) and other precedents.

## Background

[edit]

Cloud Books operated an adult bookstore in Kenmore, New York. The bookstore sold sexually explicit books and magazines and showed sexually explicit movies. (Whether these were obscene was not at issue in the case.) An undercover deputy sheriff investigated the store and allegedly witnessed sexual activity and solicitation of prostitution on multiple occasions.[1]

New York public health law defined a place used for "lewdness, assignation, or prostitution" as a nuisance.[2] Once a place was determined to be such a nuisance, the law required closure of the premises for one year, among other forms of relief. District Attorney Richard Arcara brought a civil suit against Cloud Books, seeking enforcement.[1]

The defendant argued that the forced closure of the bookstore would violate the First Amendment as a prior restraint on selling books and other materials, which are protected speech. Separately, the defendant argued that the statute only applied to establishments primarily for prostitution and not to bookstores. The trial court and the Appellate Division ruled against these arguments.[3] The state's highest court, the New York Court of Appeals, also sided with the government on the statutory question, but ruled in favor of the defendant on the First Amendment question. According to the New York Court of Appeals, closing the bookstore would have an effect on speech which was greater than necessary for the statute's purpose.[4] The government petitioned to the Supreme Court, which agreed to hear the case.[1]

## Supreme Court

[edit]

The Burger Court

The Supreme Court decided the case in favor of Arcara, reversing the lower court by a 6–3 vote.

### Opinion of the court

[edit]

In an opinion by Chief Justice Warren Burger for a six-justice majority, the court held that the First Amendment did not apply. The prohibited sexual activities were nonexpressive conduct, and the incidental burden on speech did not implicate the First Amendment. The court said that "neither the press nor booksellers may claim special protection from governmental regulations of general applicability simply by virtue of their First Amendment protected activities."[5] Otherwise, the bookseller's argument would be too far-reaching, because "every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities."[6] In addition, the court saw the burden on speech as limited, since the company could still sell books anywhere other than the location to be closed.[7][8]

The court would only apply heightened scrutiny to restrictions on conduct when "it was conduct with a significant expressive element that drew the legal remedy in the first place" or when the restriction "has the inevitable effect of singling out those engaged in expressive activity".[9][10] This distinguished two earlier cases: United States v. O'Brien (1968) and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (1983), respectively.[7]

In O'Brien, the defendant had burned his draft card as an expression of protest. The First Amendment was implicated, because the conduct was expressive. Another precedent Clark v. Community for Creative Non-Violence (1984), about sleeping in a park to protest the sutuation of the homeless, was similar to O'Brien. In Arcara, on the other hand, the prohibited sexual activity was not expressive, so the O'Brien test was not relevant.[11]

Another earlier case, Minneapolis Star, was about a tax on ink and paper in large quantities. Even though the tax was not on expressive activity, the tax violated the freedom of the press because it was effectively imposed only on newspapers. In Arcara, however, the statute did not single out First Amendment protected activities.[7]

### Concurrence

[edit]

Justice Sandra Day O'Connor wrote a one-paragraph concurrence, joined by Stevens. Both justices also joined the majority opinion. The concurrence added that First Amendment concerns would apply if the nuisance statute were used a pretext to stop the sale of indecent books, but nothing in the case suggested that the statute was used pretextually.[7]

### Dissent

[edit]

Justice Harry Blackmun dissented, joined by Brennan and Marshall. Blackmun began with the idea the First Amendment "protects against all laws 'abridging the freedom of speech'—not just those specifically directed at expressive activity."[12] He argued that heightened scrutiny was appropriate: "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."[13] The dissent concluded that closing the store unnecessarily restricted the bookseller's First Amendment rights.[7]

## Analysis

[edit]

The Arcara court was concerned that virtually every law could incidentally restrict speech in certain situations, a point which First Amendment scholarship has widely acknowledged.[14] The court sought to avoid imposing First Amendment analysis on virtually every law. Constitutional law scholar William "Jud" Campbell wrote that, since Arcara, "the Court has mostly stopped applying First Amendment scrutiny to general (i.e., nontargeted) regulations of nonexpressive conduct".[15]

Arcara is most recognized for its analysis of circumstances when incidental effects do receive Amendment scrutiny.[16] Scholars' theories drew different conclusions from Arcara and other case law about content-neutral and incidental restrictions on speech. In law professor Michael C. Dorf's analysis, "free speech doctrine treats substantial incidental burdens as raising a bona fide constitutional problem and ignores most other incidental burdens", even though the court had never stated such a principle.[17] First Amendment scholar Geoffrey R. Stone similarly found that a "significant effect" on speech made the court apply First Amendment scrutiny.[18] Other scholars saw motive as an underlying concern. Then-professor Elena Kagan surmised that "the Court's decision to apply intermediate review to certain incidental restrictions may result not so much from use of the Arcara test as from a visceral sense that an illicit factor entered into a governmental decision".[19] According to Campbell, Arcara represented a doctrinal shift toward an "anti-targeting" principle.[20] A 1995 law review article by Sri Srinivasan (who later became a D.C. Circuit judge) argued that "speech-suppressive administrative motive rather than the degree of speech-restrictive effect" was the Supreme Court's main concern in the cases.[21]

Scholars found it difficult to reconcile the Arcara test with United States v. Albertini (1985). Albertini was a First Amendment case about a man who had been banned from entering a military base and later reentered the base where he participated in a protest. The court applied First Amendment review under O'Brien. Arguably, however, Albertini was punished for the nonexpressive reentry to the base and not for his subsequent protest. Arcara would imply that O'Brien analysis was not applicable. In Stone's view, Albertini meant either that the two exceptions listed in Arcara were not exhaustive, or that "expressive" activity could be very broad.[22] Srinivasan interpreted Albertini as an exception to Arcara.[23] Campbell argued that Arcara was a "stealth overruling" of some earlier decisions and "Albertini simply does not reflect current doctrine following Arcara."[24]

## References

[edit]

1. ^ a b c Arcara, 478 U.S. at 698–702
2. ^ Arcara, 478 U.S. at 699, quoting New York Public Health Law section 2320
3. ^ People ex rel. Arcara v. Cloud Books, Inc., 101 A.D.2d 163 (N.Y. App. Div. 1984)
4. ^ People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324, 480 N.E.2d 1089 (N.Y. 1985)
5. ^ Arcara, 478 U.S. at 705
6. ^ Arcara, 478 U.S. at 706
7. ^ a b c d e Feldman, Noah R.; Sullivan, Kathleen M. (2019). Constitutional Law (20th ed.). ISBN 9781684672158. Pages 1182–1184.
8. ^ Campbell at 29–30
9. ^ Arcara, 478 U.S. at 706
10. ^ McDonald at 1041–1042
11. ^ Srinivasan at 410
12. ^ Arcara, 478 U.S. at 709 (Blackmun, J., dissenting)
13. ^ Arcara, 478 U.S. at 710 (Blackmun, J., dissenting)
14. ^ Campbell at 55 n.307
15. ^ Campbell at 6
16. ^ Srinivasan at 408; Stone at 108; Kagan at 497
17. ^ Dorf at 1210
18. ^ Stone at 112
19. ^ Kagan at 499
20. ^ Campbell at 6–9
21. ^ Srinivasan at 415–416
22. ^ Stone at 110; see also McDonald at 1041, 1052 ("the Arcara majority's account of the situations in which the Court will engage in the constitutional review of incidental speech restrictions was deficient")
23. ^ Srinivasan at 413
24. ^ Campbell at 7, 31 n.172

* Wesley J. Campbell, Speech-Facilitating Conduct, 68 Stan. L. Rev. 1 (2016).
* Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175 (1996).
* Barry McDonald, Government Regulation or Other "Abridgements" of Scientific Research: The Proper Scope of Judicial Review under the First Amendment, 54 Emory L.J. 979 (2005).
* Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996).
* Srikanth Srinivasan, Incidental Restrictions of Speech and the First Amendment: A Motive-Based Rationalization of the Supreme Court's Jurisprudence, 12 Const. Comment. 401 (1995).
* Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987).

## External links

[edit]

* Text of Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) is available from: Cornell Google Scholar Justia Library of Congress Oyez (oral argument audio)

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U.S. Supreme Court Freedom of Speech Clause case law

First Amendment to the United States Constitution

Unprotected speech|

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Fighting words and
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True threats and
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Obscenity|

* Rosen v. United States (1896)
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* United States v. 12 200-ft. Reels of Film (1973)
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* Young v. American Mini Theatres, Inc. (1976)
* People v. Freeman (Cal. 1988)
* United States v. X-Citement Video, Inc. (1994)
* Reno v. ACLU (1997)
* United States v. Playboy Entertainment Group, Inc. (2000)
* City of Los Angeles v. Alameda Books, Inc. (2002)
* Ashcroft v. American Civil Liberties Union (2002)
* United States v. American Library Ass'n (2003)
* United States v. Williams (2008)
* United States v. Stevens (2010)
* Brown v. Entertainment Merchants Ass'n (2011)
* FCC v. Fox Television Stations, Inc. (2012)
* Free Speech Coalition v. Paxton (2025)

Speech integral
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Strict scrutiny|

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Overbreadth and
Vagueness doctrines|

* Smith v. Goguen (1974)
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Symbolic speech
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* Dallas v. Stanglin (1989)
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* United States v. Eichman (1990)
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* City of Erie v. Pap's A. M. (2000)
* Virginia v. Black (2003)

Content-based
restrictions|

* Lamont v. Postmaster General (1965)
* Metromedia, Inc. v. San Diego (1981)
* Boos v. Barry (1988)
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* R.A.V. v. City of St. Paul (1992)
* Reed v. Town of Gilbert (2015)
* Barr v. American Association of Political Consultants (2020)
* City of Austin v. Reagan National Advertising of Austin, LLC (2022)

Content-neutral
restrictions|

* Schneider v. New Jersey (1939)
* Renton v. Playtime Theatres, Inc. (1986)
* City of Ladue v. Gilleo (1994)
* Packingham v. North Carolina (2017)
* TikTok v. Garland (2025)

| In the
public forum|

* Davis v. Massachusetts (1897)
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* Niemotko v. Maryland (1951)
* Edwards v. South Carolina (1963)
* Cox v. Louisiana (1965)
* Brown v. Louisiana (1966)
* Adderley v. Florida (1966)
* Carroll v. Town of Princess Anne (1968)
* Coates v. City of Cincinnati (1971)
* Org. for a Better Austin v. Keefe (1971)
* Clark v. Community for Creative Non-Violence (1984)
* Frisby v. Schultz (1988)
* Ward v. Rock Against Racism (1989)
* Burson v. Freeman (1992)
* Madsen v. Women's Health Center, Inc. (1994)
* Schenck v. Pro-Choice Network of Western New York (1997)
* Hill v. Colorado (2000)
* McCullen v. Coakley (2014)

|

Designated
public forum|

* Widmar v. Vincent (1981)
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Nonpublic
forum|

* Lehman v. Shaker Heights (1974)
* Perry Education Association v. Perry Local Educators' Association (1983)
* Cornelius v. NAACP Legal Defense Fund (1985)
* Arkansas Educational Television Commission v. Forbes (1997)
* Minnesota Voters Alliance v. Mansky (2018)

Compelled speech|

* Minersville School District v. Gobitis (1940)
* West Virginia State Board of Ed. v. Barnette (1943)
* Miami Herald Publishing Co. v. Tornillo (1974)
* Wooley v. Maynard (1977)
* Pruneyard Shopping Center v. Robins (1980)
* Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
* Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
* Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006)
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Compelled subsidy
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Government grants
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* Regan v. Taxation with Representation of Washington (1983)
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* USAID v. Alliance for Open Society International I (2013)
* USAID v. Alliance for Open Society International II (2020)

Government speech|

* Pleasant Grove City v. Summum (2009)
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* Matal v. Tam (2017)
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Loyalty oaths|

* American Communications Ass'n v. Douds (1950)
* Garner v. Board of Public Works (1951)
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* Keyishian v. Board of Regents (1967)
* Communist Party of Indiana v. Whitcomb (1974)

School speech|

* Minersville School District v. Gobitis (1940)
* West Virginia State Board of Education v. Barnette (1943)
* Tinker v. Des Moines Ind. Community School Dist. (1969, substantial disruption)
* Healy v. James (1972)
* Island Trees School District v. Pico (1982)
* Bethel School District v. Fraser (1986)
* Hazelwood School District v. Kuhlmeier (1988)
* Westside Community Board of Ed. v. Mergens (1990)
* Rosenberger v. Univ. of Virginia (1995)
* Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001)
* Morse v. Frederick (2007)
* Uzuegbunam v. Preczewski (2021)
* Mahanoy Area School District v. B.L. (2021)

Public employees|

* Pickering v. Board of Education (1968)
* Perry v. Sindermann (1972)
* Arnett v. Kennedy (1974)
* Elrod v. Burns (1976)
* Mt. Healthy City School Dist. Board of Ed. v. Doyle (1977)
* Givhan v. Western Line Consol. School Dist. (1979)
* Connick v. Myers (1983)
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* Rutan v. Republican Party of Illinois (1990)
* Waters v. Churchill (1994)
* United States v. National Treasury Employees Union (1995)
* Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001)
* Garcetti v. Ceballos (2006)
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* Lane v. Franks (2014)
* Heffernan v. City of Paterson (2016)
* Kennedy v. Bremerton School Dist. (2022)

Hatch Act and
similar laws|

* Ex parte Curtis (1882)
* United Public Workers v. Mitchell (1947)
* U.S. Civil Service Comm'n v. National Ass'n of Letter Carriers (1973)
* Broadrick v. Oklahoma (1973)

Licensing and
restriction of speech|

* Mutual Film Corp. v. Industrial Comm'n of Ohio (1915)
* Cox v. New Hampshire (1941)
* Murdock v. Pennsylvania (1943)
* Kunz v. New York (1951)
* Joseph Burstyn, Inc. v. Wilson (1952)
* Kingsley Books, Inc. v. Brown (1957)
* NAACP v. Button (1963)
* Freedman v. Maryland (1965)
* Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
* Forsyth County v. Nationalist Movement (1992)

Commercial speech|

* Valentine v. Chrestensen (1942)
* Rowan v. U.S. Post Office Dept. (1970)
* Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)
* Lehman v. Shaker Heights (1974)
* Goldfarb v. Virginia State Bar (1975)
* Bigelow v. Virginia (1975)
* Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)
* Linmark Assoc., Inc. v. Township of Willingboro (1977)
* Carey v. Population Services International (1977)
* Bates v. State Bar of Arizona (1977)
* In re Primus (1978)
* Ohralik v. Ohio State Bar Assn. (1978)
* Friedman v. Rogers (1979)
* Consol. Edison Co. v. Public Serv. Comm'n (1980)
* Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
* Metromedia, Inc. v. San Diego (1981)
* Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
* Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985)
* Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
* Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986)
* San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987)
* City of Cincinnati v. Discovery Network, Inc. (1993)
* Lebron v. National Railroad Passenger Corp. (1995)
* Florida Bar v. Went For It, Inc. (1995)
* 44 Liquormart, Inc. v. Rhode Island (1996)
* Lorillard Tobacco Co. v. Reilly (2001)
* Johanns v. Livestock Marketing Ass'n (2005)
* Sorrell v. IMS Health Inc. (2011)
* Expressions Hair Design v. Schneiderman (2017)
* Matal v. Tam (2017)
* Iancu v. Brunetti (2019)
* Barr v. American Association of Political Consultants (2020)
* Vidal v. Elster (2024)

Campaign finance and
political speech|

* Buckley v. Valeo (1976)
* First National Bank of Boston v. Bellotti (1978)
* Citizens Against Rent Control v. City of Berkeley (1981)
* FEC v. National Conservative PAC (1985)
* FEC v. Massachusetts Citizens for Life (1986)
* Austin v. Michigan Chamber of Commerce (1990)
* Colorado Republican Federal Campaign Committee v. FEC (1996)
* Nixon v. Shrink Missouri Government PAC (2000)
* Republican Party of Minnesota v. White (2002)
* McConnell v. FEC (2003)
* Randall v. Sorrell (2006)
* FEC v. Wisconsin Right to Life, Inc. (2007)
* Davis v. FEC (2008)
* Citizens United v. FEC (2010)
* Nevada Commission on Ethics v. Carrigan (2011)
* Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011)
* American Tradition Partnership, Inc. v. Bullock (2012)
* McCutcheon v. FEC (2014)
* Williams-Yulee v. Florida Bar (2015)
* Thompson v. Hebdon (2019)
* FEC v. Ted Cruz for Senate (2022)

Anonymous speech|

* NAACP v. Alabama (1958)
* Bates v. City of Little Rock (1960)
* Buckley v. Valeo (1976)
* Brown v. Socialist Workers '74 Campaign Committee (1982)
* McIntyre v. Ohio Elections Comm'n (1995)
* Doe v. Reed (2010)
* Americans for Prosperity Foundation v. Bonta (2021)

State action|

* Marsh v. Alabama (1946)
* Lloyd Corp. v. Tanner (1972)
* Manhattan Community Access Corp. v. Halleck (2019)
* Lindke v. Freed (2024)
* Murthy v. Missouri (2024)

Official retaliation|

* Hartman v. Moore (2006)
* Wood v. Moss (2014)
* Lozman v. City of Riviera Beach (2018)
* Nieves v. Bartlett (2019)
* Egbert v. Boule (2022)
* Gonzalez v. Trevino (2024)
* National Rifle Association of America v. Vullo (2024)

Boycotts|

* NAACP v. Claiborne Hardware Co. (1982)

Prisons|

* Jones v. North Carolina Prisoners' Labor Union (1977)
* Turner v. Safley (1987)
* Shaw v. Murphy (2001)
* Beard v. Banks (2006)

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