68 N.Y.2d 553 (1986)

The New York State Constitution’s guarantee of freedom of expression provides greater protection than the First Amendment of the U.S. Constitution, requiring the state to demonstrate that its actions are no broader than necessary when incidentally burdening free expression, even if the government’s purpose isn’t to directly suppress speech.

Summary

The District Attorney sought to close Cloud Books, an adult bookstore, as a public nuisance due to illegal sexual acts by patrons. The New York Court of Appeals previously ruled that closing the bookstore implicated the First Amendment and required the least restrictive means. The Supreme Court reversed, holding that the First Amendment was not implicated. On remand, the New York Court of Appeals considered whether the New York State Constitution afforded greater protection. The court held that it does, requiring the state to show its actions are no broader than necessary to achieve its purpose when incidentally burdening free expression, even if not directly targeting speech.

Facts

Cloud Books operated an adult bookstore selling books and showing movies that were sexually explicit but not obscene. Patrons engaged in illegal sexual acts on the premises. The owner was aware of these activities but took no action to prevent them and wasn’t criminally charged. The District Attorney observed the illegal acts but didn’t arrest the offenders or seek an injunction. Instead, the DA sought to close the bookstore for a year under a public nuisance law.

Procedural History

The District Attorney sought a court order to close Cloud Books. The New York Court of Appeals initially held that the closure implicated the First Amendment and required the least restrictive means, which the prosecutor had not demonstrated. The Supreme Court reversed, finding no First Amendment implication. The case was remanded to the New York Court of Appeals to determine if the state constitution provided greater protection.

Issue(s)

Whether the State constitutional guarantee of freedom of expression is implicated by an order closing the defendant’s bookstore to prevent illegal acts by patrons, requiring the state to demonstrate that the closure is no broader than necessary to achieve its purpose.

Holding

Yes, because the State constitutional guarantee of freedom of expression is of no lesser vitality than the First Amendment and requires the state to prove that in seeking to close the store, it has chosen a course no broader than necessary to accomplish its purpose.

Court’s Reasoning

The court reasoned that while bound by Supreme Court decisions on federal constitutional rights, it independently interprets the New York State Constitution, which can supplement federal rights. New York has a history of fostering freedom of expression, sometimes tolerating works considered offensive elsewhere. The court emphasized that government regulations incidentally burdening free expression must be no broader than needed to achieve their purpose. While bookstores aren’t exempt from general nuisance laws, they’re entitled to special protection. The crucial factor is the impact on protected activity, not the government’s motivation. Closing a bookstore for a year has a significant impact on free expression, requiring the state to explore less restrictive sanctions first, such as arresting offenders or seeking injunctive relief. The court quoted Bellanca v. State Liq. Auth., stating that “at the very least, the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution”. The court distinguished between regulations with a slight and indirect impact on free expression (e.g., arresting a reporter for a traffic violation) from those with a substantial impact, such as closing a bookstore.