Crawford

Opinion by Judge FERNANDEZ; Concurrence by Judge TASHIMA.

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.

BACKGROUND

On January 1, 1995, California banned the sale of certain “harmful matter” in public *383 vending machines. The statute, California Penal Code section 313.1(c)(2), provides:

Section 313(a) defines “harmful matter” as:

The statute also provides certain defenses to the crime described in 313.1(e)(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 At-well, who operate a partnership known as…

concurring:

I concur in the result and concur generally in the reasoning employed to reach it. I write separately only to add one observation. In the sensitive area of First Amendment strict scrutiny, contrary to the teaching of all conventional wisdom on the scope of judicial review, judges sometimes are required to rely “on their own instinct or experience,” Geary v. Renne, 911 F.2d 280, 305 (9th Cir.1990) (en banc) (Rymer, J., dissenting), vacated, and remanded, 501 U.S. 312 , 111 S.Ct. 2331 , 115 L.Ed.2d 288 (1991), in making that strict scrutiny analysis. This is such a case.

As our opinion points out, the law does not require, and this record does not provide, any evidence that less restrictive means are unavailable to meet the perceived problem of newsrack purchases of adult literature by minors. Thus, our judgment that no less restrictive means is available to achieve that compelling interest, despite the absence of any evidence in the record to support that “finding,” is truly instinctive and experiential. We acknowledge as much by our references to our own judgment on this score as “common sense” or “a value judgment” or as compelled because “we cannot imagine”…