10-18-1999 Planning Packet - Laserfiche WebLink

Home Browse Search

from application of New York State nuisance law designed in part to dose places of prostitution). Although the Working Group believes that nuisance injunctions with an obscenity predicate would be effective in controlling sexually oriented businesses, such previsions would probably be unconstitutional under current U.S. Supreme Court decisions. Six Supreme Court justices joined in the Arcara result, but two of them - Justices O’Connor and Stevens - concurred with these words of caution: If, however, a city were to use a nuisance statute as a pretext for dosing down a book store because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would dearly implicate Rrst Amendment concerr^ and require arralysis' under the appropriate First Amendment standard of review. Because there is no suggestion in the record or opinion below of such pretextual use of the New York nuisance provision in this case, I concur in the Court's opinion and judgment Arcara. suora. 478 U.S. at 708,106 S. Ct at 3178. In an earlier case, Vance v. Universal Amusement 445 U.S. 308, 100 S. Ct 1156 (1980), the Court ruled unconstitutional a Texas public nuisance statute authorizing the dosing of a building for a year if the building is used "habitually]” for the "commercial exhibition of obscene material.” Id. at 310 n.2,100 S. Ct at 1158 n.2. The Court’s recent holdings in SaDoenfield and Fort Wayne Books, Inc, give no.^. indication that the Court would now look more favorably upon an injunction to dose down a facility which sold obscene materials. The Court assumed without deciding that forfeiture of bookstore assets could be constitutionai in a RICO case. But In making this assumption, the Court distinguished forfeiture of assets under RICO from a general restraint on presumptively protected speech. The court approved the reasoning of the Indiana Supreme Court that, "The remedy of forfeiture is intended hot to restrain the future distribution of presumptively protected speech but rather to disgorge assets acquired through racketeering activity.” Fort Wayne Books. Inc, at 4185. The Court assumed that RICO provisions could be upheld on the basis that -29- •! 'i t ; r ■» ' TT t*-' IT, t nfc -