Crawford v. Lungren, 95-56570

Citation96 F.3d 380
Decision Date11 September 1996
Docket NumberNo. 95-56570,95-56570
Parties, 24 Media L. Rep. 2576, 96 Cal. Daily Op. Serv. 6768, 96 Daily Journal D.A.R. 11,066 Bryan H. CRAWFORD; Jim Atwell, a partnership doing business as Advanced Publications; ISG Communications Inc., a California Corporation; Bold Type, Inc., a California Corporation; Wayne C. Berry, doing business as ZAP Distributors; and Lisa Lascody, Plaintiffs-Appellants, v. Daniel E. LUNGREN, Attorney General, individually and as Attorney General of the State of California; James K. Hahn, individually and as City Attorney for the City of Los Angeles; Willie Williams, Chief of Police, individually and as Police Chief for the City of Los Angeles; Gilbert Garcetti, District Attorney, individually and as District Attorney of the County of Los Angeles; Thomas W. Sneddon, District Attorney, individually and as District Attorney for the County of Santa Barbara, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Stanley Fleishman, Fleishman, Fisher & Moest, Los Angeles, California, for plaintiffs-appellants.

Christopher C. Foley, Deputy Attorney General, Los Angeles, California, for defendant-appellee Daniel E. Lungren, individually and as Attorney General of the State of California.

Marjorie Heins, ACLU Foundation, New York City, and Cathy E. Crosson, Indiana University School of Law, Bloomington, Indiana, for amici Feminists for Free Expression and Californians Against Censorship Together.

James V. Lacy, Laguna Niguel, California and Gary G. Kreep, Escondido, California, for amici Assemblyman Bill Morrow, the United States Justice Foundation, and Help Oppose Pornography and Exploitation.

Janet M. Larue, Santa Ana, California, for amici National Law Center for Children and Families, "Enough is Enough!" Campaign, National Coalition for the Protection of Children and Families, and Family Research Counsel.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-94-08343-MLR.

Before: FERNANDEZ and TASHIMA, Circuit Judges, and MERHIGE, * District Judge.

Opinion by Judge FERNANDEZ; Concurrence by Judge TASHIMA.

FERNANDEZ, Circuit Judge:

Publishers, vendors, and one consumer of adult-oriented publications appeal the district court's order holding constitutional a California statute that bans the sale of "harmful matter" in unsupervised sidewalk vending machines. They contend that the statute is facially invalid because it discriminates against the sale of certain publications on the basis of content without being narrowly tailored to achieve a compelling state interest. We affirm.


On January 1, 1995, California banned the sale of certain "harmful matter" in public Any person who knowingly displays, sells, or offers to sell in any coin-operated vending machine that is not supervised by an adult and that is located in a public place, other than a public place from which minors are excluded, any harmful matter, as defined in subdivision (a) of Section 313, shall be punished as specified in Section 313.4.

vending machines. The statute, California Penal Code section 313.1(c)(2), provides:

Section 313(a) defines "harmful matter" as:

matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

The statute also provides certain defenses to the crime described in 313.1(c)(2). 1 Penalties for violating the law are substantial, including a fine of not more than $2000 or imprisonment for as much as one year, or both for the first conviction. Cal.Penal Code § 313.4. Subsequent violations can lead to felony convictions. Id.

The constitutionality of the statute was challenged by Bryan Crawford and Jim Atwell, who operate a partnership known as Advanced Publications which produces The Sun; ISG Communications, Inc., which produces New Reality and Hollywood Playdates; Bold Type, Inc., which produces Spectator; Wayne Berry, who operates ZAP Distributors, a newsrack company; and Lisa Lascody, who is a consumer. 2 They requested injunctive and declaratory relief because, they claimed, the statute will likely make it commercially infeasible for the publishers to distribute their materials through vending machines, and the publishers have had great difficulty finding other outlets willing to distribute their materials. 3 Thus, they asserted, the law will ultimately interfere substantially with the ability of adults to purchase the periodicals, and substantially burden the publishers' ability to distribute their materials. That, they said, violates the First Amendment to the United States Constitution.

On December 19, 1994, the district court granted a temporary restraining order against the enforcement of the statute and an order to show cause why a preliminary injunction should not issue. Then, on January 6, 1995, the district court issued a preliminary injunction restraining enforcement of the statute pending trial. 4

After trial, however, the district court concluded that the statute was not content-based and upheld it as constitutional. In finding the statute to be content-neutral, the court did not provide any explicit explanation, but did cite Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89

L.Ed.2d 29 (1986). Those citations suggest that the court understood the statute to be content-neutral because it concluded that the statute regulated the material on the basis of its secondary effects, rather than on the basis of its impact on the reader. It then held that California had a compelling interest "in shielding minors from the influence of literature that is not obscene by adult standards," and that reasonable alternative means are available for distribution and receipt of the publications. In the alternative, it held that the statute satisfied the constitutional standards applicable to content-based regulations because it was narrowly tailored to serve a compelling state interest. Consequently, the district court dissolved the preliminary injunction and denied the prayer for a permanent injunction. This appeal followed.


The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's ruling on a challenge to the constitutionality of a state statute de novo. NCAA v. Miller, 10 F.3d 633, 637 (9th Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994). We also review the decision to grant or deny declaratory relief de novo. Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.1995) (" 'Although the decision to grant or deny declaratory relief ... is a matter initially committed to the discretion of the district court, on appeal we exercise our own 'sound discretion' to determine the propriety of the district court's grant or denial of declaratory relief.' ") (citation omitted) (quotation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 701, 133 L.Ed.2d 658 (1996); see also Tashima v. Administrative Office of the United States Courts, 967 F.2d 1264, 1273 (9th Cir.1992); Fireman's Fund Ins. Co. v. Ignacio, 860 F.2d 353, 354 (9th Cir.1988) (per curiam).

I. First Amendment

Crawford contends that the statute violates the First Amendment right to free expression because it limits access to a forum based on the content of the message. In assessing the constitutionality of a regulation that limits the time, place, or manner of speech, we must determine whether the statute is content-neutral or content-based. See Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir.1987). If the statute is content-based, we apply strict scrutiny to determine whether the statute is tailored to "serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105, 118, 112 S.Ct. 501, 509, 116 L.Ed.2d 476 (1991) (quotation omitted). If the statute is content-neutral, we must determine whether it "is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925, 930, 89 L.Ed.2d 29 (1986).

1. Content-Based Regulation

The "principal inquiry" in determining whether a regulation is content-neutral or content-based "is whether the government has adopted [the] regulation ... because of [agreement or] disagreement with the message it conveys." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, ----, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994) (quotation omitted) (second alteration in original). "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." Id. That perfectly defines the law at hand because it regulates on the basis of whether the content of a publication will be "harmful" to minors. To determine whether a particular publication is "harmful" under the statute, the state "must necessarily examine the content of the message that is conveyed," predict the "reaction" of young viewers, and make a judgment only on that basis. Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 2403, 120 L.Ed.2d 101 (1992) (quotations omitted).

That the statute affects publications solely on the basis of content, however, is not quite The Supreme Court has defined secondary effects as being correlated with, but not directly a consequence of, the impact...

To continue reading

Request your trial
83 cases
  • United States v. Mongol Nation, Case No. CR 13-0106-DOC-1
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 28, 2019
    ...made by the Court. The seizure of property is also viewpoint or content-based, which triggers strict scrutiny. See Crawford v. Lungren , 96 F.3d 380, 384 (9th Cir. 1996) ("If the statute is content-based, we apply strict scrutiny to determine whether the statute is tailored to "serve a comp......
  • Hatch v. Superior Court, D032423.
    • United States
    • California Court of Appeals
    • March 31, 2000
    ...1157, 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 t......
  • Entertainment Software Ass'n v. Blagojevich, 05 C 4265.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 2, 2005
    ...material that was "harmful to minors" under the approach outlined in Ginsberg Page 1080 and Miller. See, e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir.1996) (upholding prohibition on selling material that is "harmful to minors" in vending machines); Upper Midwest Booksellers Ass'n v. City......
  • Leavitt v. Arave, 01-99008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2004, and should be, deemed waived. See, e.g., Taniguchi v. Schultz, 303 F.3d 950, 958-59 (9th Cir.2002); see also Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996). But that rule does not apply here. At the district court, the state did assert that Teague applied to Leavitt's claims,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT