I
I concur in the judgment.
The majority correctly strike down the “single use” standard as unconstitutional. They err, however, by jettisoning the “preponderance” standard in use for the past eight years and creating an entirely new and vague “regular and substantial course of conduct” standard. I therefore dissent from that portion of the opinion.
*29The majority read the decision of Pringle v. City of Covina (1981) 115 Cal.App.3d 151 [171 Cal.Rptr. 251] too broadly; it does not establish the preponderance standard as the limit of regulatory power for every locality in the state. Moreover, it is inappropriate to weave a new standard—one which apparently is meant to set a statewide regulatory floor—out of whole cloth. To do so the majority must reach out to decide this issue without the benefit of a developed record, without the benefit of briefing and, most importantly, in contravention of the spirit of United States Supreme Court decisions that emphasize the importance of allowing cities to experiment with various solutions to the serious problems created by urban blight. (See, e.g., Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 52 [89 L.Ed.2d 29, 40-41, 106 S.Ct. 925] (hereafter Renton); Young v. American Mini Theatres (1976) 427 U.S. 50, 71 [49 L.Ed.2d 310, 326-327, 96 S.Ct. 2440] (hereafter Young).)
The result is judicial legislating. Creation of the “regular and substantial course of conduct” standard is unjustified because we have been presented with no evidence that the new untested standard would ameliorate the secondary effects of adult-oriented businesses while accommodating individuals’ access to communications protected by the free speech provisions of the federal and state Constitutions.
II
Two interests collide when a city undertakes to pass zoning laws regulating so-called “adult entertainment businesses”: (1) individuals’ right to receive, and owners’ right to convey, nonobscene communication protected by the state and federal Constitutions, and (2) the city’s interest in eradicating urban blight. Among the more serious perceived negative secondary effects of such entertainment businesses are increased crime, particularly prostitution, deteriorating neighborhoods, and economic injury to nearby businesses. (See generally, Developments in the Law—Zoning (1978) 91 Harv.L.Rev. 1427, 1551 (hereafter Zoning).) No one can doubt that these serious problems are a legitimate subject of local government concern. Many cities across the nation are expending considerable resources to rejuvenate long-neglected downtown areas. These efforts take a variety of forms: some cities pass zoning laws that disperse regulated uses throughout the locality; other zoning laws are aimed at clustering the uses in limited areas; some cities regulate the operating hours and storefront advertising of so-called adult-oriented businesses; still others rely on public nuisance laws. The Supreme Court has repeatedly emphasized that courts must allow cities “ ‘a reasonable opportunity to experiment with solutions to [these] admittedly serious problems.’ ” (Renton, supra, 475 U.S. at p. 52 [89 L.Ed.2d at p. *3041], quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at p. 327] (plur. opn.).)
But courts must also protect individuals’ rights to freedom of speech, the cornerstone of a democratic society. The federal Constitution guarantees that “Congress shall make no law . . . abridging the freedom of speech . . . .” (U.S. Const., 1st Amend.) The California Constitution declares the same right in the affirmative: “Every person may freely speak, write and publish his or her sentiments on all subjects . . . .” (Cal. Const., art. I, § 2, subd. (a).) That the communication involved here pertains to sex does not mean that it deserves less than full constitutional protection.1 “[S]ex and obscenity are not synonymous. . . . The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” (Roth v. United States (1957) 354 U.S. 476, 487 [1 L.Ed.2d 1498, 1508, 77 S.Ct. 1304], fn. omitted.) These words, although written over three decades ago, still have relevance today, although to the examples must be added stage and screen presentations.
Neither of the conflicting interests, the Supreme Court has explained, is absolute. A city may, under certain circumstances, pass zoning regulations that impair the First Amendment rights of theater owners and their customers. In the seminal Young case, supra, 427 U.S. 50, a sharply divided court upheld a Detroit ordinance that prohibited adult theaters from locating within 1,000 feet of any 2 other “regulated uses,” such as motels, liquor stores and adult bookstores, or within 500 feet of a residential area. Preliminarily, the court refused to consider a vagueness challenge to the ordinance’s definition of adult motion picture: the plaintiff theater owners lacked standing to raise the challenge because they plainly intended to exhibit the type of motion pictures clearly covered by the definition, i.e., *31“distinguished or characterized by an emphasis on” certain listed sexual activities or anatomical areas. (Id. at p. 59, fn. 16 [49 L.Ed.2d at p. 319].)
Turning to the merits, the court relied on three factors in rejecting the plaintiffs’ equal protection challenge. One, the ordinance did not greatly restrict access to “lawful speech.” (Young, supra, 427 U.S. at p. 71, fn. 35 [49 L.Ed.2d at p. 327] (plur. opn.), pp. 77, 79 [49 L.Ed.2d at pp. 330-331] (conc. opn. of Powell, J.).) Two, the intent of the city in passing the ordinance was to ameliorate the negative secondary effects of adult entertainment businesses, not to suppress “offensive” speech. {Id. at p. 71, fn. 34 [49 L.Ed.2d at p. 326] (plur. opn.), pp. 80-81 [49 L.Ed.2d at pp. 331-332] (cone, opn. of Powell, J.).) Three, the record disclosed a factual basis for the city’s conclusion that the type of restriction it imposed would have the desired effect. {Id. at p. 71 [49 L.Ed.2d at p. 326] (plur. opn.), p. 82 [49 L.Ed.2d at p. 333] (conc. opn. of Powell, J.).)
In dictum, a majority of this court now create a new standard that does violence to both free speech principles and cities’ interest in tailoring zoning regulations to local circumstances. If the “regular and substantial course of conduct” standard were adopted by a legislative body in the same unstudied manner as it is suggested by the majority, courts would be required to strike it down because it fails to meet the Young criteria. Because the case comes to us on demurrer there is no evidence in the record that the new standard would allow substantially unimpeded access to protected speech. Moreover, there is absolutely no factual basis for the majority’s surmise that a “regular and substantial course of conduct” standard will substantially assist Long Beach or any other city to fight urban blight.
In most cases, courts are not required to examine the legislative record or to inquire into legislators’ motives when reviewing a statute or ordinance. When the legislation impairs the right to freedom of speech, however, “courts should continue to undertake more than a cursory, deferential examination of the factual bases of the municipality’s decision. Courts sensitive to the first amendment issues at stake should insist upon a fairly complete record of the evidence available to municipal legislators at the time they acted and of the facts on which they relied . . . .” (Zoning, op. cit. supra, 91 Harv.L.Rev. at p. 1559; see also Schad v. Mount Ephraim (1981) 452 U.S. 61, 69-70 [68 L.Ed.2d 671, 681, 101 S.Ct. 2176].) In Christy v. City of Ann Arbor (6th Cir. 1987) 824 F.2d 489, certiorari denied (1988) 484 U.S. 1059 [98 L.Ed.2d 978, 108 S.Ct. 1013], the court examined an ordinance that defined an adult bookstore as an establishment having as a “principal activity” the sale of books or films characterized by an emphasis on certain enumerated sexual activities. “Principal activity” was in turn defined as a “use accounting for more than 20 per cent of a business.” The court of *32appeals vacated the district court’s order denying the plaintiff bookseller’s motion for preliminary injunction and remanded the case for further proceedings.
After carefully examining the record, the court of appeals held, “Although both the Supreme Court in Renton, 106 S.Ct. at 931, and the Sixth Circuit in CLR [Corp.] v. Henline [(6th Cir. 1983)] 702 F.2d [637] at 639, have stated that a city need not conduct new independent studies to justify adult business zoning ordinances, both courts have required some relevant evidence to demonstrate that the zoning ordinance was intended to address the secondary effects of adult businesses. The burden of proof is on the city to show that more than a rational relationship exists between the ordinance and this government interest. [Citation.] In the case at hand, the district court’s opinion notes only that the city ‘has asserted that its purpose in passing this ordinance is to prevent the concentration of adult businesses and resultant urban blight.’ [Citation.] Upon careful review of the record in this case, we find no such ‘assertion,’ nor do we find any evidence of a legitimate government objective for the passage of this zoning ordinance.” (Christy v. City of Ann Arbor, supra, 824 F.2d at p. 493, italics added.)
If a legislative body is constitutionally prohibited from zoning adult entertainment businesses absent findings that the ordinance is directed to ameliorating secondary effects, then a fortiori this court may not “legislate” a new standard absent a record from which it can be fairly inferred that such a standard will substantially serve the government objective.
The majority’s incursion into the legislative realm is as unnecessary as it is mischievous. The majority complain that “[t]he exact basis of the Pringle decision is not entirely clear” while suggesting that it sets a constitutionally based regulatory floor for all localities in the state, i.e., that no city may constitutionally define an adult motion picture theater as a building used to exhibit anything less than 50 percent adult films, no matter what evidence is presented to the legislative body. (Maj. opn., ante, at p. 26, fn. 8 and p. 28, fn. 10.) To the contrary, Pringle, supra, 115 Cal.App.3d 151, did not purport to hold that its preponderance standard represented any sort of constitutional floor for adult entertainment zoning ordinances in general or that a local entity was precluded from adopting any definition of an adult theater that was more restrictive than the preponderance standard.
Indeed, two Court of Appeal decisions cited by the majority make this point very clear. In Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369 [181 Cal.Rptr. 1], decided just one year after Pringle, the Court of Appeal applied the predominance standard in defining the proportion of a bookstore’s stock that would render the store an “adult bookstore” for
*33purposes of a similar zoning ordinance, but at the same time explicitly recognized that a local legislative body retained the authority to adopt an alternative standard, stating: “If the board of supervisors intended to allow a lesser portion it behooves them to quantify the phrase and make findings showing their figure is consonant with the governmental interest being protected.” (128 Cal.App.3d at p. 376.) And in Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882 [200 Cal.Rptr. 47], the Court of Appeal, while applying the Pringle standard to the version of a San Diego adult entertainment zoning ordinance before it, noted that the city council had amended the ordinance after the suit in that case had been filed to define an adult motion picture theater as a theater that presents sexually explicit films or shows “for viewing on more than 7 days within any 56-consecutive-day period,” and stated approvingly that while “this provision is not in issue here, ... we may observe it operates in aid of the Code’s certainty.” (148 Cal.App.3d at p. 889, fn. 9.)
Thus, Pringle, supra, 115 Cal.App.3d 151, should not be, nor has it been, interpreted as preventing a city from holding public hearings and examining studies, based either on its own or other cities’ experiences, and enacting an ordinance that explicitly defines adult motion picture theaters as those exhibiting numerically more or less than a preponderance of adult films. At that point, a city may be in the correct posture to raise the claims Long Beach attempts to litigate in this case.
That the majority’s “regular and substantial course of conduct” standard is vague and untailored to the governmental interest at stake is hardly surprising. It does not appear in the parties’ briefs, in decisions of the courts below, or indeed, in any of the reported cases in this state. While we cannot insist on “celestial precision,” as the majority put it, because the ordinance touches on free speech rights and because violation of the ordinance can subject a theater owner to criminal penalties, both the locality’s interests and constitutional values would be better served by a more precise definition of “adult motion picture theater”—(see, e.g., Strand Property Corp. v. Municipal Court, supra, 148 Cal.App.3d 882, 889)—that is, a definition that can be understood and easily applied by all parties without engendering endless court controversy and without deterring constitutionally protected speech that poses no substantial danger of adverse secondary effects. The choice among a variety of reasonable, alternative standards that could be used to define an “adult motion picture theater” is clearly a legislative policy decision. The appropriate legislative body, not this court, is in the best position to assess the circumstances likely to create adverse secondary effects in its own community.
*34III
I must acknowledge that I share the majority’s concern that the preponderance test might result in too high a standard. The solution, however, is not to invent a “regular and substantial course of conduct” standard, of dubious context and unsupported by legislative findings. To do so is to usurp the legislative role. In my view the proper course is to allow municipalities, which “often employ planning experts who can prepare studies of the probable effects of a proposed zoning ordinance” {Zoning, op. cit. supra, 91 Harv.L.Rev. at p. 1560), to analyze, to consider and possibly to experiment with various standards and, most importantly, to create a record for judicial review. If an ordinance based on such a record is thereafter challenged, we would have a sound basis for determining whether the standard violates free speech principles.2
Some commentators argue that constitutional protection should be afforded only to explicitly political speech, and not to scientific or literary speech. (See, e.g., Bork, Neutral Principles and Some First Amendment Problems (1971) 47 Ind.L.J. 1.) Justice Stevens, writing for the plurality in Young, suggested that “erotic materials” were not entitled to the same measure of constitutional protection as “political debate.” (427 U.S. at pp. 61, 70 [49 L.Ed.2d at pp. 320-321, 326].) Fortunately, these views have not prevailed. (Nimmer on Freedom of Speech (1984) § 3.01.) A majority of justices in Young concluded that nonobscene erotic materials may not be treated differently under First Amendment principles from other forms of protected expression. (427 U.S. at p. 73, fn. 1 [49 L.Ed.2d at pp. 327-328] (Powell, J., concurring), pp. 85-87 [49 L.Ed.2d at pp. 335-336] (Stewart, J., dissenting, joined by Brennan, Marshall and Blackmun, JJ.).) This latter position is consonant with the state constitutional dictate that persons may speak freely “on all subjects.” (Cal. Const., art. I, § 2, subd. (a).) The Oregon Supreme Court reached the same conclusion in its colorful opinion in State v. Henry (1987) 302 Ore. 510, 525 [732 P.2d 9, 17-18].
It appears that the majority do not propose that their new standard should be applied retroactively to these defendants (see maj. opn., ante, at p. 28, fn. 11). Criminal prosecution based on the past conduct of defendants—like the theater owners in this case—who may well have conducted their theater’s operations in reliance both on the Pringle decision and on subsequent California cases that followed Pringle, would undoubtedly raise serious ex post facto problems.