Freedom of expression in New York State: What remains of People ex rel. Arcara v. Cloud Books Inc.?

• Author: Bethel, Jeremy J.

INTRODUCTION

Legal but unpopular forms of expression have long been afforded substantial protection under the New York State Constitution. (1) Fifteen years ago, in People ex rel. Arcara v. Cloud Books, Inc., (2) the New York Court of Appeals set the New York State standard for protecting free expression against all legislation impacting expressive opportunity without reference to the particular source of protected speech. (3)

Prior to its remand to the New York Court of Appeals, the U.S. Supreme Court, in Arcara v. Cloud Books, Inc., (4) decided that legislation impacting free expression, but not directly aimed at a source of free expression, was generally constitutional. (5) Thus, under the federal Constitution, legislation aimed at quelling activity containing no protected element--or only indirectly incidentally burdening free expression-- is generally acceptable. (6) This is true whether or not that indirect incidental burden also impacts protected speech. (7)

On remand, the New York Court of Appeals found the New York State Constitution provides greater protection against all legislation that incidentally impacts free expression, whether it is "aimed" at protected speech or merely "hit[s]" protected speech. (8)

During the past decade, the standard set by the New York Court of Appeals in People ex rel. Arcara has eroded almost entirely. (9) Shortly after the Arcara ruling, the court of appeals distinguished Arcara from cases involving zoning regulation of protected speech. (10) Zoning regulation is constitutionally favored (11) so courts allow legislation that burdens protected speech if the regulations can reasonably be described as attempts to abate the adverse "secondary effects" of protected expression. (12) However, the court of appeals failed to adequately describe which test is to be applied to what type of burden and on what factual basis. (13) As a result of the distinction made by the court of appeals in Arcara, and the court's reluctance to overrule that case, (14) a New York State municipality may find it easier to shut down an "adult" (15) use by directly attacking legal speech through zoning regulation, than to shut it down by attacking illegal activity conducted on the premises. (16)

Cases following Arcara purport to illustrate the higher degree of protection against incidental infringement of free expression provided under the New York State Constitution. (17) However, those cases, while generally acknowledging the high standard set in Arcara, fail to offer that same level of protection, blurring the line between the application of "incidental burdens" jurisprudence and the "secondary effects" jurisprudence of zoning regulation. (18) Yet the court of appeals continues to call Arcara the "[s]tate constitutional standard," (19) despite the insignificant protection it actually affords. (20) If New York State truly intends to continue its "long history and tradition of fostering freedom of expression, [by] often tolerating and supporting works which in other [s]tates would be found offensive to the community," (21) then a less elastic standard must be implemented than one that largely allows a court's assessment of the importance of legislative purpose to dictate the degree to which free expression may be infringed. (22)

This Note explores the decline of People ex rel. Arcara in New York State jurisprudence over the last decade. Part I describes traditional and contemporary methods of testing free expression infringements, including a discussion of federal minimum standards, and protection expansions implemented by the New York Court of Appeals. Both the U.S. Supreme Court's and the New York Court of Appeals' Arcara holdings are also examined. Part II describes the effect of federal "secondary effects" jurisprudence upon the People ex rel. Arcara standard, and how that encounter skewed lower court application of that standard for all cases involving "content-neutral" infringement of protected speech. Finally, Part III examines the illogical consequences of the court of appeals' method of deciding expressive freedom cases, arguing that a substantial abatement effort, in the nature of sanctions, should be required to help insure the proper balance between community needs and protecting free expression. The Note concludes that such an approach is necessary in order to reestablish New York's high standard of expressive rights protection.

1. BACKGROUND: FEDERAL MINIMUM STANDARDS OF FREE EXPRESSION PROTECTION AND ARCARA V. CLOUD BOOKS

   Part I explains the traditional minimum standards set by the U.S. Supreme Court concerning free expression infringements. It also examines both the U.S. Supreme Court's and the New York Court of Appeals' Arcara v. Cloud Books holdings and explores how and why the court of appeals broke from the minimum standard set by the U.S. Supreme Court.

   1. Federal Minimum Standards for Protecting Against Infringement of Free Expression

      Traditionally, courts test legislation that infringes upon protected speech based on a "content-based"/"content-neutral" determination. (23) However, the distinction between "content-based" and "content-neutral" is not always obvious, and the Supreme Court has yet to sufficiently clarify the difference. (24)

      Laurence Tribe, Professor of Constitutional Law at Harvard Law School, describes the distinction as one that differentiates between regulations "aimed at communicative impact," and regulations "aimed at noncommunicative impact but nonetheless [having] adverse effects on communicative opportunity." (25) A regulation is "aimed at communicative impact" if it imposes sanctions based on the content of expression, or the potential impact of expression. (26) A regulation is "aimed at noncommunicative" impact if it restricts a pursuit that might facilitate expression, or limits a potential communicative source, but does not directly impose sanctions based on the message conveyed. (27)

      Traditionally, a regulation was "content-based" if, on its face, "it was aimed at communicative impact." (28) For example, a regulation that restricts adult uses based on the content of performances held at that use, is a "content-based" regulation. (29) A regulation was "content-neutral" if, on its face, it was aimed at "noncommunicative impact," but still impacted "communicative opportunity." (30) For example, a health regulation that allows closure of facilities where health code violations take place even when such closure impacts communicative opportunity, is a "content-neutral" regulation. (31) The distinction between content-based and content neutral regulations, however, is no longer so clear.

      Generally, "content-based" regulations are presumptively invalid under the First Amendment and must be narrowly tailored to further a compelling state interest. (32) However, some "facially content-based" restrictions are now treated as "content-neutral" if justified by an interest in stemming "secondary harms." (33)

      The United States Supreme Court has created several over-lapping tests for the now numerous forms of "content-neutral" regulation. (34) One test governs regulations concerning the time, place, and manner of speech. (35) A time, place, and manner restriction might restrict when or where protected expression may be disseminated, but without reference to specific expression. (36) These content-neutral regulations may be divided into those affecting speech conducted in a public forum, and those affecting speech conducted in a private forum. Restrictions effecting speech conducted in a public forum--such as public parks and streets--must be narrowly tailored to serve a significant governmental interest. (37) Restrictions on private forum expression must be narrowly tailored (38) to serve "a significant government interest and must leave open ... alternative channels [of expression]." (39)

      A second test governs regulations that "incidentally burden" speech. (40) A regulation that incidentally infringes upon free expression must satisfy the standard set forth in United States v. O'Brien. (41) In O'Brien, the U.S. Supreme Court upheld a conviction for draft card burning as permissible under the First Amendment. (42) O'Brien argued that his conduct was protected symbolic speech, but the court decided to allow infringement of protected speech when a government regulation: (1) is within the government's constitutional power; (2) furthers a substantial interest; (3) that interest is unrelated to the suppression of free expression; and (4) the incidental infringement is "no greater than is essential to the furtherance of that interest." (43) Although the act was performed in protest of the war in Vietnam, the ordinance under which O'Brien was convicted was justified as a necessary part of a well-run drafting process. (44)

      Finally, a third test deems "facially content-based" regulations to be "content-neutral" if justified by concerns other than suppressing legal speech. (45) Such "secondary effects" regulations are analyzed under the standard delineated in City of Renton v. Playtime Theaters, Inc. (46) In Renton, a local zoning ordinance prohibited the establishment of adult movie theaters within a 1000 foot radius "of any residential zone, single or multiple family dwelling, church, park, or school." (47) The U.S. Supreme Court determined that such an ordinance was valid if it (1) served a substantial government interest; (2) was a "content-neutral" attempt to abate "secondary effects"; and (3) allowed for reasonable alternative avenues of communication. (48) Although a "facially content-based" regulation directly limits the impact of a particular type of speech, it only partially restricts that speech based on the intended abatement of "secondary effects," and, therefore, is analyzed under the time, place, and manner restrictions standard. (49) The "facially content-based" standard necessarily entails subjectively determining the purpose of an ordinance that...