California Penal Code 288.2(b) - Interpretation
In Hatch v. Superior Court (2000) 80 Cal.App.4th 170, the majority likened the statute to those that properly restrict aggressive soliciting.
The majority explained that section Penal Code 288.2(b) "punishes those who seek not discourse, but intercourse and other sexual activity, and who have identified intended victims for pursuit and seduction." (Hatch, supra, 80 Cal.App.4th at p. 201, italics in original.)
Thus, because section 288.2(b) applies to the dissemination of specifically defined "harmful matter" ( 288.2(b)) only where the sender knows the recipient is a minor and sends the material with the specific intent to seduce the minor, the court found that it primarily regulates conduct rather than speech and thus does not violate the First Amendment. (Hatch, supra,80 Cal.App.4th at pp. 203-204.)
The majority further reasoned that the knowledge and intent requirements so narrowed the statute's applicable scope that it would not have a chilling effect on non-specific communications in general Internet forums.
"While one might argue that . . . adults are free to address indecencies to an Internet audience while indifferent to the presence of children in that audience, it is only when the focus has shifted to the use of such communicated indecency in the attempted seduction of a child, a process we apprehend will be accomplished by direct, one-to-one communication that the present statute's prohibitions are violated. Thus, the only chilling effect of section 288.2 is on pedophiles who intend that their statements will be acted upon by children. Given the intention with which they are made, such statements are not entitled to the extraordinary protection of the First Amendment ." (Hatch v. Superior Court, supra, 80 Cal.App.4th at p. 203.)
Defendant argues that Hatch wrongly concluded that the statute regulated conduct and not speech.
"As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 643.) A content-based regulation is presumably invalid. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 382.) It may be upheld under the strict scrutiny test only upon a showing that it is necessary to serve a compelling state interest and has been narrowly tailored to serve that end. (Frisby v. Schultz (1988) 487 U.S. 474, 481.)
In Hsu, supra, 82 Cal.App.4th 976, the court disagreed with the Hatch majority. (Id. at p. 988, fn. 8.) The court explained that "the overriding aim of the regulation is to prevent a particular kind of message, i.e., harmful matter, from reaching minors in order to provoke in them a particular reaction, i.e., arousal of sexual desire." (Id. at p. 887.) Since that purpose cannot be served without referring to the speech the statute seeks to restrict and the content of the speech was a threshold element of the offense, the court found section 288.2(b) constituted a content-based regulation on speech. (Id. at pp. 987-988.)
Nevertheless, the court agreed with the Hatch majority's conclusion that section 288.2(b) was not impermissibly overbroad and found that the statute passed the strict scrutiny test. As to the first requirement, the appellant in Hsu conceded that section 288.2(b) serves the compelling interest of protecting children from harmful material. (Hsu, supra, 82 Cal.App.4th at p. 988.) Moreover, the court noted that the statute was one of many specifically designed to " 'protect minors from sexual exploitation and predation.' " (Id. at pp. 988-989; see Sable Communications of California, Inc. v. Federal Communications Commission (1989) 492 U.S. 115, 126 state has compelling interest in protecting minors from material not obscene by adult standards Ginsberg v. New York (1968) 390 U.S. 629, 639-640 same.)
Concerning whether section 288.2(b) is narrowly tailored to serve that compelling interest, the court found that it employed the least restrictive means to achieve its purpose. The court noted that section 288.2 proscribed only the transmission of harmful matter to a known minor with the intent to sexually arouse and seduce the minor. Thus, "the only chilling effect of the statute is on the conduct of those who would use otherwise protected speech to seduce minors. There is no violation of section 288.2, subdivision (b) when an adult disseminates the matter to another adult or to a minor without the intent of seducing the minor recipient." (Hsu, supra, 82 Cal.App.4th at p. 989.) The court further noted that "the statute's built-in affirmative defenses further limit its reach so that it targets only those who prey on minors to seduce them. It provides that parents or guardians who transmit the statutorily-defined 'harmful material' to aid legitimate sex education, or other adults who transmit the material to aid scientific or educational purposes, shall have a defense against prosecution, and it relieves the Internet providers who transmit the material from prosecution entirely. ( 288.2, subds. (c), (d), (e).)" (Hsu, supra, 82 Cal.App.4th at p. 989.)