Berry

We are called upon to delicately balance precious First Amendment rights against the government’s interest in protecting minors from viewing harmful matter. Wayne C. Berry, who distributes an “adult” publication from sidewalk newsracks, challenged enforcement of a city ordinance of the City of Santa Barbara (City) on the theory that it violated the United States Constitution. The trial court disagreed. We have strictly scrutinized the ordinance, section 5.66.110 of the Santa Barbara Municipal Code, and conclude that, on its face, the ordinance passes constitutional muster. However, the trial court did not expressly rule on whether the front page of the subject publication is harmful to minors. We cannot affirm the judgment on the pleadings insofar as it requires “L.A. X . . . Press” to be blinded. We remand for an express determination on the issue of whether the front page of the publication is harmful to minors.

The Ordinance and Statute.

Chapter 5.66 of the Santa Barbara Municipal Code regulates the registration, placement and appearance of newsracks within the City. Section 5.66.110, the only portion of chapter 5.66 which is at issue here, provides: “No material…