                            TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                  OFFICE OF THE ATTORNEY GENERAL

                                            State of California


                                              DANIEL E. LUNGREN

                                                Attorney General


                                ______________________________________

                     OPINION            :
                                        :          No. 94-805
                   of                   :
                                        :          November 18, 1994
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
          GREGORY L. GONOT              :
         Deputy Attorney General        :
                                        :
________________________________________________________________________________


           THE HONORABLE K. MAURICE JOHANNESSEN, MEMBER OF THE
CALIFORNIA STATE SENATE, has requested an opinion on the following question:

                Are the provisions of Penal Code section 313.1 that will be effective January 1, 1995,
concerning the sale of harmful matter in vending machines located on public property constitutional?


                                                   CONCLUSION

                The provisions of Penal Code section 313.1 that will be effective January 1, 1995,
concerning the sale of harmful matter in vending machines located on public property are
constitutional.

                                                     ANALYSIS

                The question presented concerns the constitutionality of a 1994 amendment (Stats.
1994, ch. 38, ' 1) to Penal Code section 313.1, 1 regulating the distribution of material which the
Legislature has deemed harmful to minors. (See Carl v. City of Los Angeles (1976) 61 Cal.App.3d
265, 269.) Effective January 1, 1995, subdivision (c)(2) of section 313.1 will state:

   1
    All undesignated section references are to the Penal Code.


                                                            1.                                 94-805

                 "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."2

In addition, the 1994 amendment provides that certain actions taken by a vendor will serve as a defense
in any prosecution based upon section 313.1, subdivision (c)(2). New subdivision (h) of section 313.1
will provide:

                 "It shall be a defense in any prosecution for a violation of paragraph (2) of
         subdivision (c) that the defendant has taken either of the following measures to restrict
         access to the harmful matter by persons under 18 years of age:

                 "(1) Required the person receiving the harmful matter to use an authorized
         access or identification card to the vending machine after taking reasonable measures to
         ascertain that the applicant was 18 years of age or older and has established a procedure
         to immediately cancel the card of any person after receiving notice, in writing or by
         telephone, that the code has been lost, stolen, or used by persons under the age of 18
         years or that the card is no longer desired.


    2
     Subdivision (a) of section 313 defines harmful matter as follows:

                    "`Harmful matter' means 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.

                    "(1) When it appears from the nature of the matter or the circumstances of its dissemination,
         distribution or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the
         matter shall be judged with reference to its intended recipient group.

                   "(2) In prosecutions under this chapter, where circumstances of production, presentation, sale,
         dissemination, distribution, or publicity indicate that matter is being commercially exploited by the
         defendant for the sake of its prurient appeal, that evidence is probative with respect to the nature of the
         matter and can justify the conclusion that the matter lacks serious literary, artistic, political, or scientific
         value for minors."

Section 313.4 provides:

                   "Every person who violates Section 313.1 . . . is punishable by fine of not more than two
         thousand dollars ($2,000), by imprisonment in the county jail for not more than one year, or by both that
         fine and imprisonment. However, if the person has been previously convicted of a violation of Section
         313.1 . . . or of [sections 311-312.5 relating to obscene matter], the person shall be punished by
         imprisonment in the state prison."


                                                               2.                                                           94-805

                  "(2) Required the person receiving the harmful matter to use a token in order
         to utilize the vending machine after taking reasonable measures to ascertain that the
         person was 18 years of age or older."

Thus, effective January 1, 1995, criminal penalties will apply to the sale or display of harmful matter by
means of an unsupervised vending machine located in a public place, other than a public place from
which minors are excluded. However, as long as a prospective adult buyer may acquire an access or
identification card or procure a token to operate the machine, no violation of paragraph (2) of
subdivision (c) will be found.

                Because of the expense involved in either providing supervision or converting existing
machines to a different access system, a publisher of adult material may find it economically infeasible
to continue distributing such material through vending machines. Thus, the restrictions placed on the
use of vending machines to sell or display matter that is harmful to minors may decrease such access to
that material by adults. As First Amendment protections3 are applicable to the public distribution of
newspapers and periodicals through newsracks (Kash Enterprises v. City of Los Angeles (1977) 19
Cal.3d 294, 302; Chicago Newspaper Publishers v. City of Wheaton (N.D. Ill. 1988) 697 F.Supp. 1464,
1466), the issue to be determined is whether the access limitations placed upon adults by the 1994
amendment to section 313.1 are constitutionally permissible.4

                Our first task in resolving this question is to ascertain which of two constitutional
standards relating to government regulation of speech activity is applicable to the 1994 statutory
amendment. These standards were described by the United States Supreme Court in Renton v.
Playtime Theatres, Inc. (1986) 475 U.S. 41 as follows:

                 "`[R]egulations enacted for the purpose of restraining speech on the basis of its
         content presumptively violate the First Amendment.' [Citation.] Enforcement of such
         a content-based regulation requires a showing that it is `necessary to serve a compelling
         state interest and that it is narrowly drawn to achieve that end.' [Citations.] In
         contrast, `so-called "content-neutral" time, place, and manner regulations are
         acceptable so long as they are designed to serve a substantial governmental interest and
         do not unreasonably limit alternative avenues of communication.'" (Id., at p. 47.)

    3
      The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth
Amendment, provides in part: "Congress shall make no law . . . abridging the freedom of speech or of the press . . . ."
Similarly, subdivision (a) of section 2 of article I of the California Constitution provides: "Every person may freely speak,
write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or
abridge liberty of speech or press."

    4
      We are not concerned here with the constitutionality of the access prohibition as it pertains to minors. "Harmful matter"
has been determined by the state to be obscene as to youths. (American Booksellers Assn., Inc. v. Superior Court (1982) 129
Cal.App.3d 197, 203; Carl v. City of Los Angeles, supra, 61 Cal.App.3d at 269.) "The state may adopt a standard of obscenity
applicable to minors which is broader than that applicable to adults and which denies minors access to materials to which
adults could not be denied access." (American Booksellers Assn., Inc. v. Superior Court, supra, 129 Cal.App.3d at 201, citing
Ginsberg v. New York (1968) 390 U.S. 629.)


                                                               3.                                                       94-805

In Renton, supra, the regulation in question was a zoning ordinance which prohibited the location of
adult motion picture theatres within 1,000 feet of any residential zone, dwelling, church, park, or
school. The court found the challenged ordinance to be content-neutral because it was "aimed not at
the content of the films shown at `adult motion picture theatres,' but rather at the secondary effect of
such theatres on the surrounding community [i.e., urban blight]." (Ibid.)

                 On the other hand, in Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, the
court found that a city ordinance restricting the location of public vending machines for adult-oriented
newspapers was subject to the more restrictive content-based standard.5 One aim of the ordinance was
to restrict access by minors to adult newspapers, and in this regard the court stated:

                  "The aim of restricting the access of minors to adult newspapers concerns direct
         listener reaction to speech and is thus content-based. As the United States Supreme
         Court has explained, `Listener's reactions to speech are not the type of "secondary
         effects" we referred to in Renton. To take an example factually close to Renton, if the
         ordinance there was justified by the city's desire to prevent the psychological damage it
         felt was associated with viewing adult movies, then analysis of the measure as a
         content-based statute would have been appropriate. The hypothetical regulation
         targets the direct impact of a particular category of speech, not a secondary feature that
         happens to be associated with that type of speech.' (Boos v. Barry (1988) 485 U.S.
         312, 321.) Here, the city's concern for exposure of minors to adult newspapers targets
         the direct impact of such newspapers, not a secondary feature that happens to be
         associated with their sales from newsracks." (Id., at p. 1384.)

The court therefore concluded that the validity of the city ordinance must be determined under the
standard applicable to content-based regulation, i.e., that the regulation is necessary to serve a
compelling state interest and is narrowly drawn to achieve that end. (Id., at p. 1385.)

                As in Sebago, subdivision (c) of section 313.1 attempts to restrict access by minors to
adult publications (containing harmful matter) and accordingly must be said to be concerned with direct
listener reaction to speech. Consequently, its validity must be measured by the more rigorous
content-based, rather than content-neutral, standard.

                  In applying the content-based standard, the court in Sebago found that while the city's
interest in restricting the unsupervised access of minors to adult bookstore materials was legitimate, the
ordinance was too broad to either implicate a compelling state interest or to be considered narrowly
drawn. The court pointed out that the ordinance was "not limited to obscenity, or even to matters
deemed `harmful' to minors by Penal Code section 313, subdivision (a)." (Sebago, Inc. v. City of
Alameda, supra, 211 Cal.App.3d at 1385; fn. omitted.) It therefore found:


    5
     It was conceded by the city that the publications in question contained no obscenity and were not harmful to minors
under state law.


                                                          4.                                                   94-805

               ". . . If such a publication is not harmful to minors, there cannot possibly be a
       compelling state interest in protecting them from it, sufficient to justify a content-based
       infringement of the First Amendment. Indisputably Alameda has a compelling interest
       in protecting minors from unsupervised access to harmful adult bookstore materials, but
       this ordinance is not narrowly drawn to achieve that end. It is so broad in scope as to
       apply to all manner of benign publications." (Id., at p. 1386.)

Moreover, the court determined that the ordinance was not sufficiently focused to serve its purported
purpose of restricting access:

                ". . . [T]he relationship between the ordinance and the asserted governmental
       interest is so tenuous as to fall short of constitutional sufficiency. [Citation.] The
       ordinance merely moves the newsracks away from residential areas. Any determined
       teenager can seek out the relocated newsracks. As Sebago points out, it is just as
       likely, if not more likely, that a minor will purchase an adult newspaper from a
       newsrack far away from the watchful eyes of parents and neighbors." (Ibid.)

While the court ruled that the city ordinance violated the First Amendment to the United States
Constitution as well as article I, section 2, of the California Constitution, it specifically noted that
"[t]his conclusion does not leave government helpless to protect minors from unsupervised access to
harmful pornography through newsracks; it just requires careful drafting by legislators." (Id., at
p. 1387.)

               In contrast to the city ordinance in Sebago, the 1994 amendment of section 313.1 is
limited to regulating vending machines which purvey material that the state has determined to be
harmful to minors. Such focus meets the test of serving a compelling state interest. Nevertheless, that
determination does not end our inquiry. In Sable Communications of California, Inc. v. Federal
Communications Commission, et al. (1989) 492 U.S. 115, the United States Supreme Court upheld
Congress' ban on "obscene" telephone calls but struck down the federal ban on "indecent" telephone
calls. With respect to the latter, the court reasoned as follows:

                "Sexual expression which is indecent but not obscene is protected by the First
       Amendment . . . .      The Government may, however, regulate the content of
       constitutionally protected speech in order to promote a compelling interest if it chooses
       the least restrictive means to further the articulated interest. We have recognized that
       there is a compelling interest in protecting the physical and psychological well-being of
       minors. This interest extends to shielding minors from the influence of literature that
       is not obscene by adult standards. (Ginsberg v. New York, 390 U.S. 629, 639-640
       (1968); New York v. Ferber, 458 U.S. 747, 756-757 (1982).) The Government may
       serve this legitimate interest, but to withstand constitutional scrutiny, `it must do so by
       narrowly drawn regulations designed to serve those interests without unnecessarily
       interfering with First Amendment freedoms. [Citation.]' [Citation.] It is not enough
       to show that the Government's ends are compelling; the means must be carefully
       tailored to achieve those ends.


                                                   5.                                                94-805

                 "In Butler v. Michigan, 352 U.S. 380 (1957), a unanimous Court reversed a
         conviction under a statute which made it an offense to make available to the general
         public materials found to have a potentially harmful influence on minors. The Court
         found the law to be insufficiently tailored since it denied adults their free speech rights
         by allowing them to read only what was acceptable for children. As Justice
         Frankfurter said in that case, `[s]urely this is to burn the house to roast the pig.' Id., at
         383. In our judgment, this case, like Butler, presents us with `legislation not
         reasonably restricted to the evil with which it is said to deal.' Ibid." (Id., at
         p. 126-127.)

               Here, effective January 1, 1995, subdivision (c)(2) of section 313.1 will apply to
vending machine distribution of material deemed harmful to minors. Adults will still be able to
purchase adult publications from supervised vending machines or by use of tokens or an access card.
On the other hand, fewer adult publications may be available for distribution through vending machines
because the requirement to provide supervised or special access machines may be too burdensome for
some publishers. Moreover, the inconvenience of having to first obtain tokens or an access card before
using a vending machine could be substantial, depending upon the individual circumstances.6

                Weighing all the possible factors, we believe that the language of subdivision (c)(2) of
section 313.1 may be upheld as constituting "the least restrictive means to further the articulated
interest." The purpose of the 1994 amendment is to effectively limit access by minors to vending
machines which purvey harmful matter. The means chosen will impinge on adult access only as
necessary to achieve that aim. It must be conceded that a remedy may appear to be draconian in some
circumstances and yet on balance be the "least restrictive" to accomplish the government's legitimate
goal.

                Rather than forbid the sale of harmful matter in vending machines, the state will allow
supervision in order to provide some reasonable assurance that the purchaser is not a minor.
Recognizing that actual supervision of such machines may be economically infeasible for some
vendors, the state will permit the supervision requirement to be met by the vendor's issuance of tokens
or an access card to adult purchasers. These provide reasonable and practical alternatives under which
age-screening of would-be purchasers may be applied to vending machine sales. The 1994
amendment is designed to serve a compelling state interest without unnecessarily interfering with First
Amendment freedoms.7

                We conclude that the provisions of section 313.1 that will be effective January 1, 1995,
concerning the sale of harmful matter in vending machines located on public property are
constitutional.

    6
     A notice affixed to the vending machine could inform would-be adult purchasers as to where the necessary tokens or
access card may be obtained.

    7
     We view the token or card alternatives to supervised vending machines as being sufficient to protect the First
Amendment freedoms of both sellers and buyers of adult material. (See Topanga Press, Inc. v. City of Los Angeles (9th Cir.
1993) 989 F.2d 1524, 1528.)


                                                           6.                                                    94-805

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   7.        94-805

