Ctr. for Bio-Ethical Reform, Inc. v. Irvine Co.

*101 In this case we consider whether certain restrictions applicable to noncommercial speech and expressive activities at two large outdoor retail centers owned by defendant and respondent The Irvine Company, LLC (Defendant) are constitutional under the free speech protections established in article I, section 2 of the California Constitution. The trial court concluded some of the challenged restrictions were unconstitutional and enjoined their enforcement. But it upheld restrictions on (1) "grisly or gruesome displays," (2) the locations in which speech and expressive conduct may occur, and (3) the use of body-worn cameras while engaging in such activities.

We hold there is no constitutional deficiency in the latter two restrictions, and the trial court did not err in denying the statutory damages requested by plaintiffs and appellants Center for Bio-Ethical Reform, Inc., and Gregg Cunningham (collectively, Plaintiffs) pursuant to Civil Code section 52.1. The ban on grisly or gruesome displays is a different matter. It is a content-based restriction that does not survive strict scrutiny review. So, we reverse the portion of the judgment finding the restriction on grisly or…

I agree with the majority that grisly and gruesome depictions are not categorically unprotected speech; Defendant's prohibition against grisly and gruesome displays is a content-based restriction subject to strict scrutiny; and Defendant did not carry its burden of demonstrating that restriction serves a compelling government interest and is narrowly tailored. But I write separately to dispel the notion that protecting young children from psychologically harmful images cannot ever be a compelling state interest. 4 Under certain circumstances, it very well might be.

*408 Both the United States Supreme Court and various California courts have recognized the government has a compelling interest in protecting minors from a variety of harms. (See Sable, supra , 492 U.S. at p. 126, 109 S.Ct. 2829 [government may shield minors "from the influence of literature that is not obscene by adult standards" because "there is a compelling interest in protecting the physical and psychological well-being of minors"]; Ginsberg v. State of New York (1968) 390 U.S. 629 , 639, 88 S.Ct. 1274 , 20 L.Ed.2d 195 ["The well-being of its children is of course a subject within the State's constitutional power…