Criminal Liability for Sending Harmful Internet Content to Minors
Section 288.2, subdivision (b) is a content-based proscription against speech; it imposes criminal liability on a person who, with the requisite intent and purpose, sends an Internet communication the content of which is harmful to minors. (Cf. Berry v. City of Santa Barbara (1995) 40 Cal. App. 4th 1075, 1084 [47 Cal. Rptr. 2d 661] [statute that regulates harmful matter under 313 is a content-based regulation].)
To determine whether a regulation is content-based, the "principle inquiry . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.
The government's purpose is the controlling consideration. a regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." ( Ward v. Rock Against Racism (1989) 491 U.S. 781, 791 [109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661].)
The People argue section 288.2, subdivision (b) is not directed at the content of the speech but, because it seeks to prevent the seduction of minors, is instead directed at the secondary effects of the speech, which subjects section 288.2, subdivision (b) to a lesser level of scrutiny. (See Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47-50 [106 S. Ct. 925, 928-930, 89 L. Ed. 2d 29].)
However, a law that proscribes speech to prevent certain reactions from the listener is a law targeting the direct impact of the speech rather than its secondary effects (Boos v. Barry (1988) 485 U.S. 312, 319-321 [108 S. Ct. 1157, 1162-1164, 99 L. Ed. 2d 333]) and is a content-based regulation subject to the highest level of scrutiny. (See Crawford v. Lungren (9th Cir. 1996) 96 F.3d 380, 384-385; Sebago, Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372, 1384 [259 Cal. Rptr. 918].)
Section 288.2, subdivision (b) is designed to prevent the listener from becoming seduced by speech, and is therefore a content-based proscription.
The majority characterizes the activity prohibited by section 288.2, subdivisions (a) and (b) as conduct rather than speech, a conclusion supported by no cited authority. As a result, it is not difficult for the majority to conclude that section 288.2, subdivision (b) is not subject to facial challenge under the First Amendment.
A content-based regulation is presumptively invalid ( R. A. V. v. St. Paul (1992) 505 U.S. 377, 382 [112 S. Ct. 2538, 2542, 120 L. Ed. 2d 305]; City of Fresno v. Press Communications, Inc. (1994) 31 Cal. App. 4th 32, 40 [36 Cal. Rptr. 2d 456]), and is subject to strict scrutiny review: the people must demonstrate the regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that interest. ( Sebago, Inc. v. City of Alameda, supra, 211 Cal. App. 3d at p. 1382.)