Arcara v. Cloud Books, Inc.

RESPONDENT: Cloud Books, Inc.
LOCATION: Congress

DOCKET NO.: 85-437
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New York Court of Appeals

CITATION: 478 US 697 (1986)
ARGUED: Apr 29, 1986
DECIDED: Jul 07, 1986

John J. DeFranks - for petitioner
John J. De Franks - on behalf of the petitioner
Paul J. Cambria, Jr. - on behalf of the respondents

Facts of the case


Media for Arcara v. Cloud Books, Inc.

Audio Transcription for Oral Argument - April 29, 1986 in Arcara v. Cloud Books, Inc.

Warren E. Burger:

We will hear arguments next in Arcara against Cloud Books.

Mr. DeFranks, I think you may proceed whenever you are ready.

John J. De Franks:

Mr. Chief Justice, and may it please the Court, the present case on a writ of certiorari to the New York Court of Appeals stems from an action under New York's public health law to abate a nuisance allegedly occurring at respondent's book store premises.

In the trial court, respondents moved for summary judgment, arguing that the closure provision of the public health laws constituted an impermissible prior restraint.

The motion was denied.

The denial was affirmed by the intermediate appellate court.

The New York Court of Appeals, however, found the law, the closure provision, that is, to constitute an unlawful prior restraint upon respondents' First Amendment right.

The issue as we see it before this Court is twofold: firstly, whether the closure provision amounts to any regulation of speech: and secondly, if it does, is it not a valid time, place, or manner restriction?

We argue initially that closure does not restrict speech in any form, oral or written, pure or symbolic.

Closure would be the result of criminal conduct which my opponent concedes has no expressive element.

Neither the complaint nor the law generically is concerned with control of any content, and the Court of Appeals specifically so found.

The exercise of First Amendment rights could never bring this law to bear against the respondents, and that is exactly what distinguishes this case from every other case cited by both sides in this controversy.

In all of those other cases, it was the exercise or intended exercise of First Amendment rights that put the individual on a collision course with the law.

In this case, no matter what he says, no matter what he sells, legal or illegal, it could never result in a proceeding for closure.

Sandra Day O'Connor:

Mr. DeFranks, would you mind explaining how New York interprets this law?

Would a single occurrence of an illegal act on the premises of a business without the knowledge or consent of the owner amount to a violation so that it could be declared a public nuisance?

John J. De Franks:

No, it would not.

The New York courts have interpreted this law to require proof of a continuing course of conduct.

Both courts, the Appellate Division and the Court of Appeals, have agreed in that.

Sandra Day O'Connor:

And does the prosecutor have an option to seek closure or an injunction?

John J. De Franks:

No, under the law the closure is mandatory at the conclusion of a successful prosecution.

The present case is really like that.

Lewis F. Powell, Jr.:

Well, did the prosecutor in this case try to get an injunction?

John J. De Franks:

The prosecutor in this case commenced the action, and the case was dismissed prior to the trial, but in our complaint we sought injunction and closure, hot the two come together as part of the law.

Byron R. White:

But your injunction was to close.

John J. De Franks:

Yes, that's correct.


Byron R. White:

It wasn't just to stop the--

John J. De Franks:


Byron R. White:

--the illegal conduct.