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New York Prosecutor Defends Bookstore Closure

April 29, 1986

WASHINGTON (AP) _ States should be free to close down for lengthy periods of time adult bookstores found to be public nuisances, a New York prosecutor told the Supreme Court on Tuesday.

″This is not a First Amendment (freedom of speech) case at all,″ John DeFranks, assistant district attorney for Erie County, N.Y., said in defending a state law allowing closure for one year of any premise, including bookstores, found to be a public nuisance. ″The law does not seek to control or censor the contents of any of the materials″ sold in such bookstores.

″Closure would be the result of criminal conduct that has no element of speech,″ DeFranks said.

But Paul Cambria Jr., a Buffalo lawyer representing a Kenmore, N.Y., bookstore being charged with being a public nuisance, said the law went too far - and therefore violated free-speech rights.

″One and only one remedy, no matter what the facts are, is the problem in this case ... a machete rather than a scalpel.″

Village Book and News in Kenmore was the target of an undercover investigation by the Erie County Sheriff’s office in 1982. The undercover officers allegedly observed prostitution and deviant sex in the store.

The county’s district attorney went to court seeking to end the nuisance, but the prosecution never has gone to trial.

Acting on a preliminary motion, the New York Court of Appeals, the state’s highest court, ruled that closing the store for a year would represent an impermissible ″prior restraint″ on the bookstore owner’s free-speech rights.

″Bookstores ... may not simply be equated with ordinary nuisances,″ the state court ruled.

Several justices Tuesday voiced concern about the New York court’s rationale.

Justice Byron R. White asked Cambria why a house of prostitution could not protect itself from closure by simply running a bookstore in its lobby.

Justice Lewis F. Powell characterized the New York law as one regulating ″conduct unrelated to speech.″

Questions asked by Justices William H. Rehnquist and Sandra Day O’Connor suggested they were troubled by Cambria’s assertion that ″the court must consider the effect of legislation on expression.″

″You’re assuming that this is a First Amendment case,″ O’Connor said at one point.

″And with good reason,″ Cambria replied. ″It’s clearly overkill ... a total closure of a lawful aspect of a business.″

The court is expected to announce its decision by July.

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