Arcara v. Cloud Books, Inc

In Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, the United States Supreme Court upheld an order closing an adult bookstore under a red light abatement statute which sanctioned closing the premises for one year upon a finding that the premises were being used for unlawful activity, including lewd conduct and prostitution. (Id. at pp. 699, 702-707.) The court held that closing the store as a sanction on illegal nonexpressive activity did not unlawfully burden the store's expressive activity, i.e., selling books. Indeed, the court held, the First Amendment is not even implicated "by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books. 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." (Arcara, at p. 707.) The court held that the fact that the sanction would have "some effect on the First Amendment activities of those subject to sanction" is irrelevant, unless "it was conduct with a significant expressive element that drew the legal remedy in the first place" or a statute based on nonexpressive activity has "the inevitable effect of singling out those engaged in expressive activity." A red light abatement law directed at nonexpressive illegal activities does not involve either situation. (Id. at pp. 706-707.) Section 11225 is virtually identical to the statute at issue in Arcara, in that it provides for abatement of a nuisance at premises being used for purposes of lewdness, assignation or prostitution, without regard to the nature of any other business or activities being conducted on the premises. (Arcara, supra, 478 U.S. at p. 699.)