# People v. Sequoia Books, Inc.

> Illinois Supreme Court · March 22, 1989 · 127 Ill. 2d 271

URL: https://www.frixlaw.com/law-library/cases/9712123

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SEQUOIA BOOKS, INC., Et Al., Appellees
- **Court:** Illinois Supreme Court
- **Decided:** March 22, 1989
- **Citations:** 127 Ill. 2d 271; 130 Ill. Dec. 235; 537 N.E.2d 302; 1989 Ill. LEXIS 33
- **Precedential status:** Published
- **Opinion:** Dissent by Miller
- **Judges:** Clark, Moran, Miller, Ryan
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712123

## How later opinions describe it (automated extraction)

- stating that “[a]n omnibus clause concerning those covered by driving an insured’s car may equally well be expressed as, ‘those driving the car with the “permission of the named insured ” ’ ”

## Opinion text

JUSTICE MILLER, dissenting:
I do not agree with the majority’s conclusion that the closure and release provisions of the nuisance abatement scheme contained in section 37 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 37 — 4) violate the defendants’ constitutional rights of free expression, and therefore I respectfully dissent.
The only challenge raised by the defendants to the closure and release provisions of section 37 — 4 is that the statute operates as an unconstitutional prior restraint on free expression, and it was on this ground that the appellate court ruled in the defendants’ favor. The majority, however, reaches the same result for a different reason, holding that application of the nuisance statute to the predicate conduct of obscenity violates the test developed in United States v. O’Brien (1968), 391 U.S. 367 , 20 L. Ed. 2d 672 , 88 S. Ct. 1673 , for evaluating governmental regulations of symbolic speech. In answer to the argument made by. the defendants, I would hold that the closure and release provisions are not, in these circumstances, an invalid prior restraint. In answer to the question discussed by the majority, I would hold that the provisions satisfy the requirements of the O’Brien test, assuming that O’Brien is applicable here.
Obscenity cannot claim any constitutional protection. .(Miller v. California (1973), 413 U.S. 15 , 37 L. Ed. 2d 419 , 93 S. Ct. 2607 ; Roth v. United States (1957), 354 U.S. 476 , 1 L. Ed. 2d 1498 , 77 S. Ct. 1304 .) Because a closure order will prohibit all activity at the subject premises for the duration of the decree unless a bond is posted, the defendants believe that the effect of such a scheme is to improperly restrain, in advance, all expression, including protected speech, at that location. (See Near v. Minnesota ex rel. Olson (1931), 283 U.S. 697 , 75 L. Ed. 1357 , 51 S. Ct. 625 .) Courts have been divided on this question. In some jurisdictions, statutes purporting to authorize the closure of adult bookstores and theatres as nuisances based on the past dissemination of obscene material have been struck down as invalid prior restraints. (See General Corp. v. State ex rel. Sweeton (1975), 294 Ala. 657, 666 , 320 So. 2d 668, 675-76 ; People ex rel. Busch v. Projection Room Theater (1976), 17 Cal. 3d 42, 58 , 550 P.2d 600, 609-10 , 130 Cal. Rptr. 328, 337-38 ; Sanders v. State (1974), 231 Ga. 608, 614 , 203 S.E.2d 153, 157 ; State v. A Motion Picture Entitled “The Bet” (1976), 219 Kan. 64 , 73-77, 547 P.2d 760 , 769-71; Gulf States Theatres of Louisiana, Inc. v. Richardson (La. 1973), 287 So. 2d 480, 491-92 ; City of Minot v. Central Avenue News, Inc. (N.D. 1981), 308 N.W.2d 851, 871 .) Closure statutes have been upheld in other jurisdictions. (See People ex rel. Kidwell v. U.S. Marketing, Inc. (1981), 102 Idaho 451 , 631 P.2d 622 ; State ex rel. Cahalan v. Diversified Theatrical Corp. (1975), 59 Mich. App. 223, 237-38 , 229 N.W.2d 389, 396-97 , rev’d on other grounds (1976), 396 Mich. 244 , 240 N.W.2d 460 .) I do not believe that our State’s nuisance abatement scheme operates as an invalid prior restraint, and I would sustain the provisions.
Under section 37 — 4, property constituting a public nuisance may be ordered closed for a period of one year following a judicial determination that a nuisance was maintained on the premises “with the intentional, knowing, reckless or negligent permission of the owner” or his agent. Section 37 — 1 (Ill. Rev. Stat. 1987, ch. 38, par. 37 — 1) defines the term “public nuisance” as “[a]ny building used in the commission of” certain enumerated offenses. The offenses that may serve as the predicate conduct for a public nuisance include murder, kidnapping and aggravated kidnapping, keeping a place of prostitution, obscenity, child pornography, possession of explosives or explosive or incendiary devices, and gambling and keeping a gambling place. (See Ill. Rev. Stat. 1987, ch. 38, pars. 9-1, 10-1, 10-2, 11-17, 11-20, 11-20.1, 20 — 2, 28 — 1, 28 — 3.) An owner may gain the release of his property from a closure order by posting “bond with sufficient security or surety approved by the court, in an amount between $1,000 and $5,000 inclusive, *** and including a condition that no offense specified in Section 37 — 1 of this Act shall be committed at, in or upon the property described and a condition that the principal obligor and surety assume responsibility for any fine, costs or damages resulting from such an offense thereafter.” Section 37 — 4 also authorizes certain ex parte proceedings that may result in the issuance of temporary restraining orders and preliminary injunctions against maintaining a public nuisance. I confíne my analysis to the closure and release provisions at issue here.
A bookseller convicted of a criminal offense, including obscenity, cannot avoid imprisonment simply by claiming that incarceration will curtail his constitutional rights of free expression. Nor can the owner of a structure that houses a bookstore escape penalties for local building code violations simply by asserting the constitutionally protected status of that business. The closure and release provisions of section 37 — 4 should be considered in a similar light. If the provisions serve a penal purpose, unrelated to the suppression of protected speech, then I would sustain the measures as a proper exercise of the police power. An examination of the provisions and a comparison of their sanctions with the penalties for related illegal conduct persuade me that the closure and release provisions are valid.
The effects of a closure order are less onerous than the consequences that may result from conviction for either the offense of maintaining a public nuisance or the predicate offense of obscenity. A closure order operates only against the premises where the violations occurred. The lessee and the property owner both remain free to transact their businesses at any other location. Moreover, a party who takes advantage of the release provision of section 37 — 4 may, by posting a bond in an amount between $1,000 and $5,000, continue operating at the affected location upon the condition that none of the offenses specified in section 37 — 1 will occur there. The closure and release provisions thus serve to deter the commission of illegal conduct.
Commission of a public nuisance under section 37 — 1 of the Criminal Code is a Class A misdemeanor; a second or subsequent violation is a Class 4 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 37 — 1(b).) Obscenity, the predicate conduct in this case, is classified similarly: a first offense is a Class A misdemeanor, and a second or subsequent violation is a Class 4 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20(d).) A Class 4 felony is punishable by a term of imprisonment of between one and three years; a Class A misdemeanor is punishable by a sentence of imprisonment of less than one year. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—1(a)(7), 1005 — 8—3(a)(1).) The maximum fine for a felony is $10,000, and the maximum fine for a Class A misdemeanor is $1,000. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 9—1(a)(1), (a)(2).) Thus, section 37 — 4, which authorizes the closure of the premises for a one-year period, is no more severe than the maximum period of incarceration that may be imposed for the misdemeanor offenses of obscenity or maintaining a nuisance. The bond required for release of property from a closure order may be in an amount between $1,000 and $5,000, which lies in the middle of the range of fines that may be imposed against felony violators of the obscenity and nuisance statutes. These similarities between the potential punishment for the predicate conduct and the duration of the closure order and the authorized amounts of the release bond demonstrate that the abatement provisions of section 37 — 4 serve a penal purpose, which is designed to exercise a deterrent effect on illegal conduct of the nature specified in section 37 — 1.
Nor can it be argued that the release provision, allowing continued operations at the premises upon the condition that no violation of the offenses enumerated in section 37 — 1 occur there, including the offense of obscenity, provides an inadequate guide for future conduct. That objection assumes that the definition of obscenity is unconstitutionally vague, which is an entirely separate question, and one that is not raised here. The terms of the release provision, and indeed of any injunctive measure prohibiting the sale or distribution of obscene materials, are no less clear than the criminal law on which they are based.
The Supreme Court has held that an injunction may issue against the future dissemination of a specific item that has been determined to be obscene. (Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436 , 1 L. Ed. 2d 1469 , 77 S. Ct. 1325 .) This court has held that a party may be enjoined from committing unspecified acts of obscenity in the future. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill. 2d 295 .) The nuisance abatement scheme of section 37 — 4 authorizes the temporary forfeiture of the use of premises employed in the commission of certain offenses. An owner may gain release of his property by posting the necessary bond, subject to the condition that further violations of the criminal statutes specified in section 37 — 1 will not occur during the pendency of the bond. I would conclude that the statutory scheme is not an invalid prior restraint.
Rather than analyze the closure and release provisions of section 37 — 4 under the prior restraint doctrine, as the defendants urge, the majority relies instead on the four-part test developed in United States v. O’Brien (1968), 391 U.S. 367 , 20 L. Ed. 2d 672 , 88 S. Ct. 1673 , a case involving governmental regulation of symbolic speech. Indeed, a number of commentators have suggested use of the O’Brien test in cases involving closure, or padlock, orders in anti-obscenity nuisance proceedings. (See Note, Restraining Prior Restraint, or a Call for Balancing in Evaluating Obscenity Abatement Statutes: City of Paducah v. Investment Entertainment, Inc., 82 Nw. U.L. Rev. 181, 202-10 (1987); Note, Pornography, Padlocks, & Prior Restraints: The Constitutional Limits of the Nuisance Power, 58 N.Y.U. L. Rev. 1478 , 1513-28 (1983).) An early application of O’Brien to regulations affecting sexually explicit material came in Justice Powell’s concurring opinion in Young v. American Mini Theaters, Inc. (1976), 427 U.S. 50 , 49 L. Ed. 2d 310 , 96 S. Ct. 2440 . Young involved a Detroit zoning ordinance that contained locational restrictions on certain land uses, including theatres and bookstores exhibiting or selling sexually explicit, though not necessarily obscene, material. The operators of two adult theatres challenged the zoning scheme on a number of constitutional grounds. A majority of the Court ruled that the ordinance was not unconstitutionally vague and did not operate as an invalid prior restraint on protected expression. The Court also rejected the theatre operators’ argument that the classification system on which the ordinance was based, with its distinction between businesses that purveyed sexually explicit material and those that did not, was a denial of equal protection. A plurality believed that sexually explicit material warranted less protection than pure political speech and found no reason to upset the scheme. Justice Powell, who supplied the necessary fifth vote for the Court’s rejection of the theatre operators’ equal protection argument, analyzed the ordinance under O’Brien instead. He too concluded that the Detroit zoning ordinance was constitutional.
The fourth part of the O’Brien test asks whether “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of [the governmental] interest” (O’Brien, 391 U.S. at 377 , 20 L. Ed. 2d at 680 , 88 S. Ct. at 1679 ), and the majority concludes that the closure and release provisions at issue in this case unnecessarily interfere with protected expression.
One may question whether the O’Brien test is applicable here. Arcara v. Cloud Books, Inc. (1986), 478 U.S. 697 , 92 L. Ed. 2d 568 , 106 S. Ct. 3172 , involved the one-year closure of a bookstore, pursuant to a State statute, where prostitution and other acts of lewdness had occurred. As the majority opinion recounts, the Court ruled that the O’Brien test was not applicable in that case. Referring to the decision of the New York Court of Appeals, which had relied on O’Brien in striking the closure order, the Supreme Court stated:
“That court ignored a crucial distinction between the circumstances presented in O’Brien and the circumstances of this case: unlike the symbolic draft card burning in O’Brien, the sexual activity carried on in this case manifests absolutely no element of protected expression. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 , 37 L. Ed. 2d 446 , 93 S. Ct. 2628 (1973), we underscored the fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct by the diaphanous device of attributing protected expressive attributes to that conduct. First Amendment values may not be invoked by merely linking the words ‘sex’ and ‘books.’ ” 478 U.S. at 705 , 92 L. Ed. 2d at 576-77 , 106 S. Ct. at 3176-77 .
Here too the conduct that brought on application of the nuisance abatement scheme contained no protected expressive element. Obscenity, whether in conduct, in words, or in pictures, enjoys no constitutional protection; words alone may be legally obscene, and therefore unprotected. (Kaplan v. California (1973), 413 U.S. 115, 118-19 , 37 L. Ed. 2d 492, 496-97 , 93 S. Ct. 2680, 2683-84 .) Because the predicate obscenity in this case, like the predicate acts of sexual conduct in Arcara, was completely unprotected by the first and fourteenth amendments, I would conclude that O’Brien, relied on by the majority, is inapplicable here as well. It may be noted that the zoning ordinance at issue in Young, in which Justice Powell invoked O’Brien in his concurring opinion, regulated sexually explicit, but not necessarily obscene, material and therefore had an impact on protected expression. And contrary to the majority’s view, the closure and release provisions do not have the effect of singling out for regulation bookstores and other purveyors of protected expression. The nuisance abatement scheme may be triggered by a wide variety of offenses, as enumerated in section 37 — 1.
Assuming, nevertheless, that application of the O’Brien test to this case is appropriate, I do not agree with the majority’s holding that the closure and release provisions at issue here fail to satisfy the fourth element of that test. In Young, in rejecting the theatre operators’ equal protection challenge to the classification scheme created by the zoning ordinance, Justice Stevens stated:
“[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s' interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate ***. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.” (Young, 427 U.S. at 70 , 49 L. Ed. 2d at 326 , 96 S. Ct. at 2452 (plurality opinion).)
Writing for a plurality, Justice Stevens concluded that the State could classify land uses on the basis of the sexually explicit material disseminated from the affected businesses.
I would assess the effect of the closure and release provisions on the defendants’ constitutionally protected activities in a similar light. The defendants here have been convicted of obscenity. The closure provision, which punishes past violations and deters future dissemination of unprotected material, is no more onerous than criminal sanctions of fines or imprisonment would be. It is applicable only to the premises where the violations took place, and the defendants remain free to transact business in other locations. Moreover, the defendants may gain release of their premises by posting the necessary bond. I would conclude that those aspects of the nuisance abatement scheme are constitutional.
JUSTICE RYAN joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712123. Public record. Not legal advice.