Although I concur with the result of the majority opinion that the trial court correctly denied Hatch’s motion to set aside counts 1 and 20 through 23, I do not concur that Penal Code section 288.2, subdivision (b)1 is constitutional under the commerce clause and the First Amendment. I believe, as have other courts that have *206considered substantively indistinguishable statutes, that facial challenges under the commerce clause and the First Amendment, when properly analyzed, compel the conclusion that section 288.2, subdivision (b) is unconstitutional. I also do not concur that section 288.2, subdivision (a) prohibits distribution of harmful matter over the Internet. I believe that under traditional principles of statutory construction section 288.2, subdivision (a) does not apply to Internet communications. The statutory construction principle relied on by the majority to reach a contrary conclusion—“the question answers itself’ (maj. opn., ante, pt. IV.) is one heretofore unknown to me. Because section 288.2, subdivision (b) is unconstitutional and section 288.2, subdivision (a) is inapplicable, I would direct the trial court to dismiss counts 2 through 19.
The majority, expressing pursuit of the admirable goal of brevity in appellate court opinions, announces it will disregard numerous opinions from other jurisdictions because of the “limited precedential value” of those opinions. (Maj. opn., ante, at p. 194, fn. 17.) Although the goal of brevity is laudable, I cannot similarly discount the value of those other courts’ analyses. Those courts have in my view correctly applied the same commerce clause and First Amendment principles that should guide our constitutional analysis here. I recognize the majority states section 288.2 has the crucial or critical distinguishing characteristic of an intent to seduce element not contained in some statutes considered by other courts. However, the majority does not explain how that crucial or critical difference in the statutory language vitiates the facial commerce clause and First Amendment defects in the statute. Accordingly, although my discussion of cases from other jurisdictions lengthens this opinion, I do not share the majority opinion’s view that those cases are irrelevant. Paraphrasing Robert Frost, two roads diverged and the majority took the one less traveled by, and that has made all the difference.
Because of the brevity of the majority’s constitutional and statutory . interpretation analysis, I am compelled to conduct a de novo analysis of the validity of section 288.2, subdivision (b) under the commerce clause and the First Amendment and to explain in detail my interpretation of the scope of section 288.2, subdivision (a). I do not understand the majority to have conducted a facial analysis in response to Hatch’s facial challenge. “A facial challenge to the constitutional validity of a statute . . . considers only the text of the measure itself, not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145].) The majority rejects Hatch’s commerce clause facial challenge because the statute, as applied to Hatch’s conduct in California sending harmful matter to California minors, does not unduly *207burden protected interstate commerce. An as-applied analysis is not a facial analysis. The majority rejects Hatch’s First Amendment facial challenge because the statute, as applied to Hatch’s conduct in California sending harmful matter to California minors with the requisite intent, does not infringe on protected speech. Again, an as-applied analysis is not a facial analysis.
For the reasons I discuss below, I believe section 288.2, subdivision (b)’s “ ‘ “provisions inevitably pose a present total and fatal conflict with [two] applicable constitutional prohibitions” ’ ” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084): the dormant aspect of the commerce clause and the First Amendment. Accordingly, I would sustain Hatch’s facial challenges' to the constitutionality of section 288.2, subdivision (b). Further, I would hold that as a matter of statutory construction, section 288.2, subdivision (a) does not prohibit distribution of harmful matter to minors over the Internet.
I
The Constitutional Issues
Hatch argues section 288.2, subdivision (b) is facially invalid under article I, section 8 of the United States Constitution (the commerce clause), and section 288.2, subdivisions (a) and (b) are facially invalid under the First and Fifth Amendments to the United States Constitution.
Section 288.2 provides in part that:
“(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means . . . any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense . . . . [f] . . . [f]
“(b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet. . . or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense . . . .”
*208Section 313 provides in part that: “(a) ‘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.”
A. Section 288.2, Subdivision (b) and the Commerce Clause
I first evaluate section 288.2, subdivision (b) under the commerce clause. I begin with an overview of the applicable principles and then examine other courts’ application of those principles to analogous sister state statutes.
1. General Principles
The commerce clause has two aspects: it is an affirmative grant of power to the federal government to regulate interstate commerce, and it restricts the power of states to regulate interstate commerce. (Pacific Merchant Shipping Assn. v. Voss (1995) 12 Cal.4th 503, 514-515 [48 Cal.Rptr.2d 582, 907 P.2d 430].) The state restriction aspect is commonly referred to as the dormant Commerce Clause (see Barclays Bank PLC v. Franchise Tax Bd. of Cal. (1994) 512 U.S. 298, 310, fn. 9 [114 S.Ct. 2268, 2276, 129 L.Ed.2d 244]). State laws that impose discriminatory restrictions on interstate commerce are virtually per se invalid.2 State laws that regulate activity requiring a national regulatory scheme and impose multiple inconsistent burdens on interstate commerce may also be invalid.3 (See, e.g., CTS Corp. v. Dynamics Corp. of America (1987) 481 U.S. 69, 88-89 [107 S.Ct. 1637, 1649-1650, 95 L.Ed.2d 67]; Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 767 [65 S.Ct. 1515, 1519, 89 L.Ed. 1915]; Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 529 [79 S.Ct. 962, 967-968, 3 L.Ed.2d 1003].) State laws that regulate activities outside the state’s borders may be invalid; a state may not export its domestic policies into other states and therefore may not enact laws regulating activities occurring outside its borders. (Edgar v. MITE Corp. *209(1982) 457 U.S. 624, 641-643 [102 S.Ct. 2629, 2640-2641, 73 L.Ed.2d 269]; Baldwin v. G. A. F. Seelig (1935) 294 U.S. 511, 521 [55 S.Ct. 497, 499-500, 79 L.Ed. 1032, 101 A.L.R. 55].) Finally, a state law that is not invalid under the foregoing tests may be invalid under the balancing test articulated in Pike v. Bruce Church, Inc. (1970) 397 U.S. 137 [90 S.Ct. 844, 25 L.Ed.2d 174], (Campeau Corp. v. Federated Dept. Stores (S.D. Ohio 1988) 679 F.Supp. 735, 738-739 [court evaluates statute under Pike test only if statute first passes tests that prohibit discriminatory statutes and statutes imposing inconsistent burdens].) Under Pike, the court balances the burden placed on interstate commerce by the state law against the local benefit derived from the state law (Pike, supra, at p. 142 [90 S.Ct. at p. 847]) and the state law is invalid if the burden on interstate commerce is clearly excessive compared to the putative local benefit. (Ibid.)
2. The Pataki Decision
In American Libraries Ass'n v. Pataki (S.D.N.Y. 1997) 969 F.Supp. 160 (Pataki), the court evaluated a New York statute similar to section 288.2, subdivision (b) that criminalized knowingly communicating harmful matter to minors over the Internet.4 The Pataki court evaluated the nature of the Internet, noting the Internet is a global, decentralized and borderless communications medium in which participants communicate in a variety of ways, including one-to-one messaging (such as e-mail), one-to-many messaging (such as “listserv” and “mail exploders”), distributed message databases (such as “Usenet newsgroups”) and remote information retrieval (such as Web sites). (969 F.Supp. at pp. 164-165 & 167.) The Internet permits participants to communicate anonymously by using pseudonyms without disclosing either the age or geographic location of the participants. (Ibid.)
Pataki first concluded that because the New York law regulated a mode of communications used as a conduit for interstate commerce, it was subject to Commerce Clause scrutiny. It rejected the state’s argument that because the law was directed at conduct that was not commerce, the commerce clause was inapplicable. It reasoned that the dormant commerce clause has been *210applied to laws that regulated activities undertaken without a profit motive (see Edwards v. California (1941) 314 U.S. 160, 172, fn. 1 [62 S.Ct. 164, 166, 86 L.Ed. 119] [law prohibiting transportation of indigents into California invalid under dormant commerce clause and it is “immaterial whether or not the transportation is commercial in character”]) and that the concept of commerce is given broad meaning by the courts. (See Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997) 520 U.S. 564 [117 S.Ct. 1590, 137 L.Ed.2d 852].) Moreover, because the Internet has become an important conduit for commercial activity, regulations affecting it are subject to commerce clause scrutiny.5 (Pataki, supra, 969 F.Supp. at pp. 169-173.)
Pataki then evaluated the New York statute under commerce clause principles and concluded it was per se invalid. First, the statute purported to regulate conduct occurring outside New York’s borders. Second, the nature of the Internet requires uniform regulation and Internet users would be threatened by multiple inconsistent burdens were each state to impose its separate Internet regulations. The Pataki court also concluded that, under the Pike test, z/the statute’s burdens on interstate commerce outweighed the putative local benefits of the statute.6
The commerce clause’s ban on state regulations that have the effect of exporting the state’s domestic policies into other states (Edgar v. MITE Corp., supra, 457 U.S. 624, 642-643 [102 S.Ct. 2629, 2640-2641]; Healy v. The Beer Institute, supra, 491 U.S. 324, 336 [109 S.Ct. 2491, 2499]) convinced the Pataki court that the New York statute was per se invalid. The Pataki court reasoned that: “The Edgar/Healy extraterritoriality analysis rests on the premise that the Commerce Clause has two aspects: it subordinates *211each state’s authority over interstate commerce to the federal power of regulation (a vertical limitation), and it embodies a principal of comity that mandates that one state not expand its regulatory powers in a manner that encroaches upon the sovereignty of its fellow states (a horizontal limitation).” (969 F.Supp. at pp. 175-176.)
Pataki concluded that the nature of the Internet “makes it impossible to restrict the effects of the [law] to conduct occurring within New York” (Pataki, supra, 969 F.Supp. at p. 177); an Internet user may not intend his messages to be accessible in New York but cannot prevent New Yorkers from accessing his messages or prevent messages directed to recipients in other states from passing through New York computers. “Thus, conduct that may be legal in the state in which the user acts can subject the user to prosecution in New York and thus subordinate the user’s home state’s policy—perhaps favoring freedom of expression over a more protective stance—to New York’s local concerns.” (Ibid.) Pataki held that New York’s regulation of the Internet had the effect of projecting New York’s laws into other states and was per se invalid under the Edgar/Healy extraterritoriality analysis of the commerce clause. (Ibid.)
Pataki further concluded that the nature of the Internet requires a national uniform regulation because Internet users would be threatened by multiple inconsistent burdens if each state implemented its own Internet regulations. Pataki cited several cases in which laws purporting to regulate only intrastate matters of local concern were struck down under the commerce clause because they affected a form “ ‘of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.’ [(Quoting Southern Pacific Co. v. Arizona, supra, 325 U.S. at p. 767 [65 S.Ct. at p. 1519].)]” (Pataki, supra, 969 F.Supp. at pp. 181-182.) Pataki reasoned that the Internet, like the rail and highway regulations at issue in Southern Pacific Co. and Bibb v. Navajo Freight Lines, supra, 359 U.S. 520, would be severely burdened if users were “lost in a welter of inconsistent laws, imposed by different states with different priorities,” and concluded the Internet “requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations.” (Pataki, supra, at p. 182.) The potential for multiple inconsistent burdens was increased by the fact that the New York law banned harmful matter using the Miller v. California (1973) 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] (Miller) standard, which incorporates a patently offensive to prevailing standards in the community test. Pataki noted that because there is no single prevailing community standard in the United States, “even were all 50 states to enact laws that were verbatim copies of the New York Act, Internet users would still be subject to discordant *212responsibilities”; matter not deemed harmful in the state from which it was sent could be deemed harmful in states in which it was received. (Pataki, supra, at pp. 182-183.) Because an Internet user cannot know the geographic location of the message recipient or foreclose access to the message, he or she would have to (1) comply with the most stringent standard, or (2) forgo communicating matter protected in the user’s state, or (3) risk prosecution based on the geographic fortuity of the unknown recipient. Based on this analysis Pataki concluded: “Further development of the Internet requires that users be able to predict the results of their Internet use with some degree of assurance. Haphazard and uncoordinated state regulation can only frustrate the growth of cyberspace. The need for uniformity in this unique sphere of commerce requires that New York’s law be stricken as a violation of the Commerce Clause.” (Id. at p. 183.)
The Pataki commerce clause analysis was followed in Cyberspace, Communications, Inc. v. Engler (E.D.Mich. 1999) 55 F.Supp.2d 737 (Engler) and in American Civil Liberties Union v. Johnson (10th Cir. 1999) 194 F.3d 1149 (Johnson). Engler held unconstitutional under the commerce clause a Michigan statute that criminalized Internet communications to minors of sexually explicit matter harmful to minors (Mich. Comp. Laws § 722.671 [Mich. Stat. Ann. § 25.254]). The Engler court noted the extraterritorial effect of the statute and found it a per se violation of the commerce clause. (Engler, supra, at p. 751.) The court also found the statute unconstitutional under the Pike balancing test. (Ibid.) Johnson held unconstitutional under the commerce clause a New Mexico statute that criminalized dissemination by computer of harmful matter to a minor. (N.M. Stat. Ann. § 30-37-3.2, subd. A.) The Johnson court noted that the statute “represents an attempt to regulate interstate conduct occurring outside New Mexico’s borders, and is accordingly a per se violation of the Commerce Clause.” (Johnson, supra, at p. 1161, fn. omitted.) The Johnson court also found the statute unconstitutional under the Pike balancing test and the need for uniform regulation test. (Id. at pp. 1161-1162; see also People v. Barrows (1998) 177 Misc.2d 712 [677 N.Y.S.2d 672, 685] (Barrows II); but see People v. Foley (1999) 257 A.D.2d 243 [692 N.Y.S.2d 248, 256] (Foley).)
3. Analysis
The actus reus of a section 288.2, subdivision (b) violation is the act of distributing harmful matter over the Internet to a known minor regardless of whether the sender is physically in California at the time of the transmission. Moreover, although the sender must have specific intents and purposes and know the recipient is a minor, he need not know the minor he intends to seduce is in California. Because the statute regulates conduct in other states and burdens the use of a conduit of interstate commerce, its constitutionality *213must be evaluated under the commerce clause. (Pataki, supra, 969 F.Supp. at pp. 169-174.) The majority opinion does not dispute the Internet is a conduit of interstate commerce or that section 288.2, subdivision (b) must survive Commerce Clause scrutiny; however, the majority asserts the statute does not seek to regulate activity outside California. Neither the text nor the legislative history of the statute supports the majority’s position. On its face, the statutory violation occurs once the harmful matter is transmitted and contains no limitation to California-domiciled transmitters or recipients. Moreover, the legislative history shows that one of the evils prompting the enactment of section 288.2, subdivision (b) was that sexual predators in other states were using the Internet to lure children to cross state lines to engage in sexual liaisons. (See Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 181 (1997-1998 Reg. Sess.) as amended Apr. 8, 1997, par. 2, at <http://www.leginfo.ca.gov> [as of Mar. 27, 2000].) Thus, the majority’s claim that the statute regulates only intrastate conduct is not persuasive.
Section 288.2, subdivision (b) suffers from the same commerce clause infirmities as the New York statute considered in Pataki. First, the statute has the practical effect of exporting California’s domestic policies into other states, which is impermissible under Edgar v. MITE Corp., supra, 457 U.S. 624 and Healy v. The Beer Institute, supra, 491 U.S. 324. Conduct lawful in a sister state may, because of the nature of the Internet, subject a sender to criminal liability in California even if the sender did not intend his message to be read in California; he can neither prevent Californians from accessing his messages nor prevent messages directed to recipients in other states from passing through California computers. For example, in many states a 19-year-old male may have sexual relations with a 16-year-old female without violating any law, and there would appear to be no impediment to his use of e-mail to send salacious matter intending to seduce even though he knew her to be 16 years old.7 However, if unbeknownst to the sender a female to whom he sent the matter was (1) a California domiciliary or (2) a casual *214visitor to California who used a remote retrieval method to open the offending transmission at a California cybercafe, the sender’s conduct, lawful under the domestic policies of his home state, subjects him to criminal prosecution in California. I agree with Patak's observation, modified to fit the California context, that under section 288.2, subdivision (b), “conduct that may be legal in the state in which the user acts can subject the user to prosecution in [California] and thus subordinate the user’s home state’s policy—perhaps favoring freedom of expression over a more protective stance—to [California’s] local concerns.” (Pataki, supra, 969 F.Supp. at p. 177.) This extraterritoriality aspect of section 288.2, subdivision (b) makes it per se invalid under the Edgar/Healy extraterritoriality analysis of the commerce clause.
The majority concludes that section 288.2, subdivision (b) is not invalid under the Edgar/Healy extraterritoriality analysis because in this case all conduct was between California domiciliaries and occurred within California; therefore the application of the statute to Hatch does not project California’s laws into other states. Although the majority does not cite Barrows II on this point, the Barrows II court rejected a Commerce Clause challenge to a conviction for luring a minor to engage in sexual activity by disseminating harmful matter over the Internet because the defendant’s conduct was within the State of New York. Although Barrows II peremptorily stated that the problems of extraterritoriality and preemption became mooted by conduct within New York (Barrows II, supra, 677 N.Y.S.2d at pp. 685-686), I am not persuaded this statement should be followed. First, because the same conviction was overturned on First Amendment grounds {id. at p. 686), the Barrows II discussion of the commerce clause was dicta. Second, Barrows II made no effort to evaluate the difference between a facial challenge and an as-applied challenge to a statute.
The majority here relies on Foley, supra, 692 N.Y.S.2d 248, in which the court rejected a commerce clause challenge to convictions for luring a minor to engage in sexual activity by disseminating harmful matter over the Internet regardless of whether the conduct occurred in the State of New York. Foley considered a commerce clause challenge to the same New York Penal Law section 235.22 that was challenged in Barrows II. However, Foley considered only the discrimination and Pike balancing aspects of the dormant commerce clause. Because Foley did not consider the extraterritoriality *215or multiple inconsistent burden aspects of the dormant Commerce Clause I do not find its analysis or result persuasive. (See Engler, supra, 55 F.Supp.2d at pp. 750, 751; Johnson, supra, 194 F.3d at pp. 1160-1162.)
In my view the majority makes the same Commerce Clause analysis error as does Barrows II. Barrows II did not distinguish between a facial and an as-applied challenge to the statute. Barrows II was apparently unaware of the distinction and ignored it. The majority here recognizes the distinction and ignores it. Inexplicably, the majority considers Hatch’s facial challenge to section 288.2, subdivision (b) by referring to the facts of Hatch’s case. However, a facial challenge to the constitutional validity of a statute considers only the text of the statute, not its application to the particular circumstances of a particular defendant. (Tobe v. City of Santa Ana, supra, 9 Cal.4th 1069, 1084.) Thus, in Morgan v. Virginia (1946) 328 U.S. 373 [66 S.Ct. 1050, 90 L.Ed. 1317, 165 A.L.R. 574], a local passenger on a bus was convicted of violating state penal statutes relating to segregation of passengers of public carriers according to color. Although the statute was susceptible to an interpretation that it applied only to intrastate passengers, the court nevertheless concluded the statute was invalid under the commerce clause because on its face it was susceptible to application to both intrastate and interstate passengers. (Id. at pp. 382-386 [66 S.Ct. at pp. 1056-1058].) Thus, a statute may facially violate the Commerce Clause even though a particular application of the statute might not. The majority has simply made an as-applied analysis of the commerce clause and thereby missed the point of extraterritoriality set forth in Pataki, Engler and Johnson.
Furthermore, under section 288.2, subdivision (b), users of the Internet are threatened by multiple inconsistent burdens as each state implements separate Internet statutes; the nature of the Internet requires a national uniform regulation.8 Absent uniform national regulation, users will be “lost in *216a welter of inconsistent laws, imposed by different states with different priorities” (Pataki, supra, 969 F.Supp. at p. 182) and users will be unable to reasonably determine their obligations. For example, section 288.2, subdivision (b) defines the type of communications outlawed by reference to the standards articulated in Miller, supra, 413 U.S. 15 and incorporates “contemporary statewide standards” to determine whether the matter appeals to prurient interests and is patently offensive (§ 313). However, there is no single prevailing community standard in the United States, which therefore subjects Internet users to “discordant responsibilities”: matter not deemed harmful in the state from which it was sent could be deemed harmful under California standards. (Pataki, supra, at pp. 182-183.) Because' an Internet sender cannot know the geographic location of the recipient or prevent access to the message, the sender would have to (1) comply with the California’s standards, or (2) forgo communicating matter protected in the user’s state but not in California, or (3) risk prosecution based on the geographic fortuity that his recipient might be in California. The potential for inconsistent obligations is exacerbated by the age-of-consent differences among the states. Different states may conclude that a person capable of consent at an age younger than that designated in California should be entitled to view matter that would be deemed harmful under California’s concept of minority. (See Johnson, supra, 194 F.3d at p. 1162.)
The majority seeks to distinguish Pataki on two grounds: first, the statute in Pataki does not contain an intent-to-seduce requirement, and second, the California statute is limited to Internet transmissions sent and received in California. Although the majority repeatedly describes the first distinction as crucial, it does not explain why it is crucial or the effect it has on the extraterritorial or multiple inconsistent burden effect of section 288.2, subdivision (b). The second distinction, which places an unsupported narrow interpretation on the scope of section 288.2, subdivision (b), is a reflection of an as-applied rather than a facial analysis and is inconsistent with the legislative history of the statute. (See Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 181, supra, at par. 2.) Attempts to narrow the scope of similar statutes have been rejected. (See Johnson, supra, 194 F.3d 1149, 1161; Pataki, supra, 969 F.Supp. at pp. 164-165 & 167.)
Although the protection of minors from harmful matter is an important state interest, the nature of the Internet compels the conclusion that California’s statutory attempt in section 288.2, subdivision (b) to criminalize a certain category of Internet transmissions is unconstitutional under the *217commerce clause because of its extraterritorial effect and the need for uniform national regulation.9
B. Section 288.2, Subdivision (b) and the First Amendment
Hatch asserts section 288.2, subdivisions (a) and (b), to the extent they facially apply to Internet communications, are invalid for vagueness and overbreadth under the First Amendment to the United States Constitution.
1. General Principles Applicable to Section 288.2, Subdivision (b)
Section 288.2, subdivision (b) is a content-based proscription against speech; it imposes criminal liability on a person who, with the requisite intent and purpose, sends an Internet communication the content of which is harmful to minors. (Cf. Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1084 [47 Cal.Rptr.2d 661] [statute that regulates harmful matter under § 313 is a content-based regulation].) To determine whether a regulation is content-based, the “principle inquiry ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. [Citation.] The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. [Citation.]” (Ward v. Rock Against Racism (1989) 491 U.S. 781, 791 [109 S.Ct. 2746, 2754, 105 L.Ed.2d 661].) The People argue section 288.2, subdivision (b) is not directed at the content of the speech but, because it seeks to prevent the seduction of minors, is instead directed at the secondary effects of the speech, which subjects section 288.2, subdivision (b) to a lesser level of scrutiny. (See Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47-50 [106 S.Ct. 925, 928-930, 89 L.Ed.2d 29].) However, a law that proscribes speech to prevent certain reactions from the listener is a law targeting the direct impact of the speech rather than its secondary effects (Boos v. Barry (1988) 485 U.S. 312, 319-321 [108 S.Ct. 1157, 1162-1164, 99 L.Ed.2d 333]) and is a content-based regulation subject to the highest level of scrutiny. (See Crawford v. Lungren (9th Cir. 1996) 96 F.3d 380, 384-385; Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1384 [259 Cal.Rptr. 918].) Section 288.2, subdivision (b) is designed to prevent the listener from becoming seduced by speech, and is therefore a content-based proscription. The majority characterizes the activity prohibited by section 288.2, subdivisions (a) and (b) as conduct rather than speech, a conclusion supported by no cited authority. As a result, it is not difficult for *218the majority to conclude that section 288.2, subdivision (b) is not subject to facial challenge under the First Amendment.
A content-based regulation is presumptively invalid (R. A. V. v. St. Paul (1992) 505 U.S. 377, 382 [112 S.Ct. 2538, 2542, 120 L.Ed.2d 305]; City of Fresno v. Press Communications, Inc. (1994) 31 Cal.App.4th 32, 40 [36 Cal.Rptr.2d 456]), and is subject to strict scrutiny review: the people must demonstrate the regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that interest. (Sebago, Inc. v. City of Alameda, supra, 211 Cal.App.3d at p. 1382.)
My analysis is guided by a key consideration: the Internet communications made criminal under section 288.2, subdivision (b) enjoy First Amendment protection if transmitted to adults.10 (Berry v. City of San Barbara, supra, 40 Cal.App.4th at pp. 1083-1085.) Because the majority applies an as-applied analysis rather than a facial analysis, it does not address the fundamental First Amendment issue raised by Hatch. As the court explained in Sable Communications of Cal., Inc. v. FCC (1989) 492 U.S. 115, 126 [109 S.Ct. 2829, 2836, 106 L.Ed.2d 93]: “Sexual expression which is indecent but not obscene is protected by the First Amendment .... The Government may . . . 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. [Citations.] 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 *219unnecessarily interfering with First Amendment freedoms. [Citations.]’ [Citation.] It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.”
Under Sable the California Legislature has the constitutional power to enact laws designed to keep harmful matter from minors, even though the same matter judged by adult standards is entitled to First Amendment protection. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 302 [138 Cal.Rptr. 53, 562 P.2d 1302]; Sebago, Inc. v. City of Alameda, supra, 211 Cal.App.3d at p. 1381.) However, a valid law must be narrowly drawn to serve that interest without unnecessarily interfering with First Amendment freedoms.
2. Section 288.2, Subdivision (b) Is Invalid for Overbreadth
Application of strict scrutiny review involves a two part analysis: does the restriction on speech serve a compelling state interest; and is it narrowly drawn to achieve only that interest. States have a compelling interest in protecting the welfare of minors and in preventing minors from gaining access to matter deemed harmful as to them. (Sable Communications of Cal., Inc. v. FCC, supra, 492 U.S. 115, 126 [109 S.Ct. 2829, 2836-2837]; FCC v. Pacifica Foundation (1978) 438 U.S. 726, 749-750 [98 S.Ct. 3026, 3040-3041, 57 L.Ed.2d 1073].) I assume for purposes of analysis that section 288.2, subdivision (b)’s goal of protecting minors from exposure to harmful matter is a compelling state interest.
A law is narrowly drawn only if it contains the “least restrictive means to further the articulated interest.” (Sable Communications of Cal., Inc. v. FCC, supra, 492 U.S. at p. 126 [109 S.Ct. at p. 2836].) The regulation must “targetf] and eliminate[] no more than the exact source of the ‘evil’ it seeks to remedy. [Citation.]” (Frisby v. Schultz (1988) 487 U.S. 474, 485 [108 S.Ct. 2495, 2503, 101 L.Ed.2d 420].) A statute will be invalid for over-breadth when on its face it criminalizes a substantial amount of protected, as well as unprotected, speech (People v. Antoine (1996) 48 Cal.App.4th 489, 495 [56 Cal.Rptr.2d 530]) and therefore chills First Amendment protected speech. (Bailey v. City of National City (1991) 226 Cal.App.3d 1319, 1331 [277 Cal.Rptr. 427]; New York v. Ferber (1982) 458 U.S. 747, 768-769 [102 S.Ct. 3348, 3360-3361, 73 L.Ed.2d 1113]; Broadrick v. Oklahoma (1973) 413 U.S. 601, 615 [93 S.Ct. 2908, 2918, 37 L.Ed.2d 830] [“[O]verbreadth *220. . . must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”].)11
I am convinced by the reasoning of Reno, supra, 521 U.S. 844, Engler, supra, 55 F.Supp.2d 737, Barrows II, supra, 677 N.Y.S.2d 672, and Johnson, supra, 194 F.3d 1149 that section 288.2 subdivision (b) is overbroad because it chills Internet users from engaging in constitutionally protected speech by threatening them with criminal sanctions. Reno evaluated the federal Communications Decency Act of 1996 (CDA), which criminalized knowingly communicating to persons under the age of 18 years “indecent” or “patently offensive” speech. (Reno, supra, at pp. 859-861 [117 S.Ct. at p. 2338].) Reno recognized that although the government has an interest in protecting children from harmful matter, “that interest does not justify an unnecessarily broad suppression of speech addressed to adults”; Reno reaffirmed that “ ‘[r]egardless of the strength of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’ [(Quoting Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 74-75 [103 S.Ct. 2875, 2884-2885, 77 L.Ed.2d 469].)]” (Reno, supra, at p. 875 [117 S.Ct. at p. 2346].) Reno concluded that because of the nature of the Internet, substantial amounts of protected speech could be subjected to criminal prosecution under the CDA and portions of the CDA were therefore invalid for over-breadth. (Id. at pp. 877-879 [117 S.Ct. at pp. 2347-2348].) Reno expressed two principal reasons for concluding the CDA was overbroad. First, the CDA banned matter that was “indecent” or “patently offensive” without incorporating the additional elements under Miller that the matter “appeal to the prurient interest” and “lack[] serious literary, artistic, political or scientific value”; the CDA therefore facially banned communications of large amounts of protected matter with serious educational or other value. Second, by defining the banned content based on whether it offended “community standards,” a sender incurs criminal liability under the CDA for a transmission of protected speech that his home community deemed neither indecent nor patently offensive if the community in which it was received “thought otherwise.” (Ibid.)
The majority concludes that Reno is not controlling here because, unlike the CDA, section 288.2, subdivision (b)’s definition of “harmful matter" is *221consistent with the Miller test and requires the sender have the specific intent to “arous[e], appealf] to, or gratify[] the lust or passions or sexual desires” of the sender or the minor for the purpose of seducing the minor. Even with these limiting textual refinements, the statute is substantively indistinguishable from the New York statute held unconstitutional under the First Amendment in Barrows II.
In Barrows II, the court examined a New York statute that criminalized communicating matter “harmful to minors” sent to “importunen, invite[] or induce[] a minor” to engage in sexual conduct with or for the defendant’s benefit. (Barrows II, supra, 677 N.Y.S.2d at pp. 679-680.) Like section 288.2, subdivision (b), the New York statute (1) defined the prohibited “harmful to minors” content of the transmission using the Miller standards (compare N.Y. Pen. Law § 235.20, subd. 6 with Pen. Code, § 313) and (2) required the matter be sent with the intent to induce the minor to engage in sexual conduct.
Barrows II concluded that under Reno the New York statute was invalid for vagueness and overbreadth. (Barrows II, supra, 677 N.Y.S.2d at p. 686.) Barrows II reasoned that although incorporation of the Miller standards into the New York statute eliminated one of Reno's overbreadth concerns, a second basis of Reno's overbreadth analysis remained applicable: the borderless nature of the Internet prohibited a clear and predictable definition of what content would be “patently offensive to prevailing standards.” (Id. at pp. 682-683.) Barrows II reasoned: “The international, geographically-borderless nature of the Internet’s reach, regardless of the speaker’s intent, was a major factor in the [Reno court’s] finding that the CD A is facially unconstitutional. This finding applies equally to the New York statute which, though not as vague as the CDA in light of the definition of what is ‘harmful to children[,’] does suffer from the same imprecision and overbreadth in failing to provide a clear and predictable definition of what transmissions will be deemed ‘patently offensive to prevailing standards’ of a universal audience. Were it possible to confine the use of the Internet within the State of New York, perhaps the statute would be enforceable, but that is neither possible . . . nor, in light of the potential of the Internet, is it desirable to so restrict such communication. The inevitable dilemma faced by the Internet user who wishes to transmit ideas which are sexual in nature or which contain even simulated nudity is whether such expressions will offend the standards of any community within the vast range of transmission as to what is ‘suitable’ for children. . . .” (677 N.Y.S.2d at p. 683.)
Barrows II also noted that Reno rejected the government’s argument that the requirement of knowledge of the recipient’s age insulates the innocent *222adult from criminal prosecution. Reno recognized that most Internet communications are open to anyone and expressed concern of the possible heckler’s veto by which an opponent of a protected message “ ‘might simply log on and inform the would-be discourses’ of the presence of a [minor], thereby chilling any further communication among adult participants [quoting Reno, supra, 521 U.S. at p. 880 [117 S.Ct. at p. 2349]].” (Barrows II, supra, 677 N.Y.S.2d at pp. 683-684.) The potential of the heckler’s veto, together with the chilling effect of the penal aspect of the CDA, could “ ‘cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images’ [(quoting Reno, supra, at p. 872 [117 S.Ct. at pp. 2344-2345])].” (Barrows II, supra, at p. 684.) These considerations convinced the Barrows II court that, although the goals of the statute were laudable, the statute was invalid for overbreadth because it chilled protected speech by threatening to attach criminal liability to persons engaged in protected speech. (Id. at p. 686.) The majority here seeks to avoid this aspect of Barrows II by limiting its analysis to Hatch’s one-on-one-communications with Stacie and Lisa. Again, the narrow analysis of the majority results from its as-applied-to-Hatch review and ignores the substance of Hatch’s First Amendment facial challenge to section 288.2, subdivision (b).
I am aware that the Appellate Division of the Supreme Court of New York in Foley reached a conclusion different from the conclusion of the Supreme Court of New York in Barrows II and that Barrows II may not reflect the current status of the constitutionality of New York Penal Law section 235.22, the Penal Law section challenged in both cases. However, I have referred at length to Barrows II not for its continued authority in New York on the constitutionality of New York Penal Law section 235.22, but for the cogency of its analysis. Although Foley is the opinion of the higher New York court, I find its analysis unpersuasive. The Foley court’s analysis of the difficult First Amendment issues presented is conclusionary and even desultory. The Foley opinion describes the New York law as consisting of two prongs: the dissemination of harmful matter to minors and luring the minor to engage in sexual activity. (Foley, supra, 692 N.Y.S.2d at pp. 253, 254.) It then concludes without explanation that “[b]ecause of the two-pronged nature of the statute, communication between adults would not be chilled” even though it acknowledges there are applications of the statute that would make it overbroad. (Id. at p. 254.) Because I am unable to discern the rationale of the Foley opinion, I find it unhelpful in the analysis of the First Amendment issues.
In Engler, the court examined a Michigan statute (Mich. Comp. Laws § 722.671 [Mich. Stat. Ann. § 25.254]) that made criminal the use of computers or the Internet to disseminate sexually explicit matter to minors. *223(Engler, supra, 55 F.Supp.2d at p. 740.) Engler held the statute unconstitutional under the First Amendment because the state did not establish either that it was necessary to further the state’s interest in protecting minors or was narrowly tailored to achieve a compelling state interest. (Engler at pp. 751-752.)
In Johnson, the court examined a New Mexico statute (N.M. Stat. Ann. § 30-37-3.2, subd. A) that made criminal the use of computers to disseminate harmful matter to a minor. (Johnson, supra, 194 F.3d at p. 1152.) Johnson held the statute unconstitutional under the First Amendment because “the statute as written, like the CDA [in Reno], unconstitutionally burdens otherwise protected adult communication on the Internet.” (Johnson, supra, at p. 1160.)
I am convinced section 288.2, subdivision (b) is facially overbroad because in the borderless world of the Internet, a sender engaged in speech protected in his domicile is subjected under section 288.2, subdivision (b) to criminal prosecution in California. First, in numerous states an 18-year-old man can seek sexual liaisons with females he knows to be 16 and 17 years old; there is presumably no bar against exchanging “indecent” matter with these consenting “adults” to induce that liaison, which matter may even be sent with the intent to seduce. (See, e.g., Ala. Code § 13A-6-110; Ind. Code Ann. § 35-42-4-6; N.M. Stat. Ann. § 30-37-3.2.) Although this speech is protected in those states, the speaker faces criminal liability in California if (1) he transmits the offending message in California, (2) the receiver remotely retrieves the message in California, or (3) if the offending message is electronically routed through a computer in California. Because an Internet correspondent’s e-mail address is a logical rather than geographic construct, it is ordinarily impossible for the sender to know the physical location of his correspondent; the in terrorem effect of the California statute will chill the sender into self-censorship for fear that speech otherwise protected in his state might enter California and trigger criminal liability.12
A second factor—the variability among community standards—also leads me to conclude that section 288.2, subdivision (b) threatens to chill protected speech.13 Because of the nature of the Internet, a sender could transmit matter protected in his domicile (because not deemed harmful under the *224community standards prevailing in his domicile), without knowing the recipient was downloading that matter in California and be subject to more stringent community standards for matter deemed inappropriate for minors.14 Because of the nature of the Internet a sender, even though he knows the recipient is a minor and has the requisite intent and purpose required by section 288.2, subdivision (b), cannot know the geographic locale of the recipient and hence whether matter acceptable in the sender’s domicile might qualify as harmful matter to that recipient. The sender must therefore self-censor for fear that speech otherwise protected in his or her state might' enter California and trigger criminal liability.15
I conclude that section 288.2, subdivision (b) suffers from substantial facial overbreadth by criminalizing potentially protected speech. Even assuming the goals of the statute serve a substantial state interest,16 the People make no effort to demonstrate that the state interest cannot be *225advanced by less restrictive means (like receiver-based controls or filters as discussed in Shea on Behalf of American Reporter v. Reno (S.D.N.Y. 1996) 930 F.Supp. 916, 931-934, American Civil Liberties Union v. Johnson (D.N.M. 1998) 4 F.Supp.2d 1029, 1033, and Reno, supra, 521 U.S. at pp. 854-855 [117 S.Ct. at pp. 2336-2337]) that impose less onerous burdens on protected speech. (See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC (1996) 518 U.S. 727, 753-760 [116 S.Ct. 2374, 2390-2394, 135 L.Ed.2d 888] [invalidating regulation as overbroad when recipient-based controls available] and Engler, supra, 55 F.Supp.2d 737 at pp. 750-751.) In my opinion, section 288.2, subdivision (b) is invalid under the First Amendment.
II
Statutory Interpretation of Section 288.2, Subdivision (a)
The Commerce Clause and First Amendment infirmities of section 288.2, subdivision (b) arise because that subdivision explicitly applies to Internet communications. However, section 288.2, subdivision (a) does not expressly apply to Internet communications and the facial constitutional infirmities of subdivision (b) are not exposed by the express wording of subdivision (a). The issue is whether Hatch may nevertheless be prosecuted as charged under section 288.2, subdivision (a) for his pre-January 1, 1998, acts of distributing harmful matter over the Internet.17
The majority concludes the plain meaning of the text of section 288.2, subdivision (a), which proscribes distribution of harmful matter “by any means,” permits prosecution of Hatch for his Internet communications because the Internet is a “means.” By focusing only on subdivision (a), the majority opinion states “the question answers itself.” Although statutory interpretation initially focuses on the text of a statute to construe its meaning (People v. Valladoli (1996) 13 Cal.4th 590, 597 [54 Cal.Rptr.2d 695, 918 P.2d 999]; People v. Benson (1998) 18 Cal.4th 24, 30 [74 Cal.Rptr.2d 294, 954 P.2d 557]), it must consider the internal context of the entire statute and consider it as a whole, construing its various parts to give meaning to each *226part. (Laureano v. Christensen (1971) 18 Cal.App.3d 515, 521 [95 Cal.Rptr. 872].) Although the meaning of a statutory phrase may be plain and certain if the phrase is considered in isolation, blind adherence to the text of a statutory phrase is improper if its literal interpretation is inconsistent with other provisions of the same statute, defeats the apparent legislative intent and is otherwise in conflict with accepted interpretive canons. (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 614 [200 Cal.Rptr. 575].) Because section 288.2, subdivision (b) specifically includes Internet communications and section 288.2, subdivision (a) does not, it is unclear from the internal context of the statute whether section 288.2, subdivision (a) also includes Internet communications. Because the textual meaning of section 288.2, subdivision (a) is uncertain, I consider other aids of statutory construction, including legislative intent and accepted canons of statutory interpretation.
I conclude that the “any means” language of section 288.2, subdivision (a) does not include Internet distribution of harmful matter.18 First, when the Legislature makes material changes to an existing statute by amendment, it is ordinarily presumed the Legislature intended to change the meaning of the existing law (Dubins v. Regents of University of California (1994) 25 Cal.App.4th 77, 85 [30 Cal.Rptr.2d 336]). There must be a clear demonstration, from either the nature of the amendment or an express legislative declaration, to conclude the Legislature intended only to clarify existing law (Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86, 99 [133 Cal.Rptr. 649]). The 1997 amendment to section 288.2 adding subdivision (b) to specify that Internet distribution is a crime was not accompanied by any statement that it merely clarified or was declarative of existing *227law, and I therefore presume the addition of Internet distribution was to change the existing scope of section 288.2 by expanding it to cover a previously uncovered communications medium.19
Second, a statute should be constructed to preserve its constitutionality.20 (Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 216 [95 S.Ct. 2268, 2276, 45 L.Ed.2d 125].) The majority’s construction of section 288.2, subdivision (a) to include Internet distribution raises the constitutional infirmities of subdivision (b). Moreover, the majority’s construction of subdivision (a) presents an additional First Amendment overbreadth concern. Under subdivision (a), a sender can be held criminally liable for distributing harmful matter to a minor without knowing the recipient was a minor if he “fails to exercise reasonable care in ascertaining the true age” of the recipient. The Reno court concluded that because the Internet precludes any effective method for a transmitter to verify the age of his recipients, even a requirement of actual knowledge of the recipient’s age would not eliminate the chill on protected speech. (521 U.S. at pp. 876-877 [117 S.Ct. at p. 2347].) If a statute requiring actual knowledge of the recipient’s age is nevertheless overbroad by “inevitably curtailing] a significant amount of adult communication on the Internet” (ibid.), the threat of criminal liability *228under the “should have known” standards of subdivision (a) imposes an even greater chill on protected speech because the sender could face criminal liability based on ad hoc decisions regarding whether he exercised reasonable care to determine the age of his correspondent.
Third, when the juxtaposition of statutory subdivisions creates uncertainty as to the reach of a criminal statute, settled principles caution that the uncertainty be resolved in favor of the defendant (People v. Piper (1986) 42 Cal.3d 471, 477 [229 Cal.Rptr. 125, 722 P.2d 899]); under the rule of lenity the defendant is entitled to the benefit of every reasonable doubt as to whether the statute is applicable to him. (People v. Bryant (1992) 10 Cal.App.4th 1584, 1599 [13 Cal.Rptr.2d 601].) The juxtaposition of section 288.2, subdivisions (a) and (b), coupled with the legislative history and the disparate standards of culpability between those subdivisions, lead me to construe section 288.2, subdivision (a) as inapplicable to Internet communications.21
III
Conclusion
I would issue a writ of mandate directing the superior court to vacate its November 18, 1998, order denying Hatch’s motion to set aside the information, and to enter a new and different order granting Hatch’s motion to set aside counts 2 through 19 of the information and denying Hatch’s motion to set aside counts 1 and 20 through 23.
A petition for a rehearing was denied April 26, 2000, and the opinion was modified to read as printed above. McDonald, J., was of the opinion that the petition should be granted. Petitioner’s petition for review by the Supreme Court was denied July 19, 2000.
All statutory references are to the Penal Code unless otherwise specified.
In the commerce clause context the term “discrimination” means differential treatment of in-state and out-of-state economic interests that benefits the in-state interests and burdens the out-of-state interests. (Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. (1994) 511 U.S. 93, 99 [114 S.Ct. 1345, 1349-1350, 128 L.Ed.2d 13].) The discrimination may take any of three forms; first, the statute may facially discriminate against interstate or foreign commerce; second, it may be facially neutral but have a discriminatory purpose; third, it may be facially neutral but have a discriminatory effect. (SDDS, Inc. v. State of S.D. (8th Cir. 1995) 47 F.3d 263, 267.) Section 288.2, subdivision (b) is not a discriminatory statute.
This aspect of the commerce clause is applied regardless of the legislative intent of the state statute. (Healy v. The Beer Institute (1989) 491 U.S. 324, 333, fn. 9 [109 S.Ct. 2491, 2498, 105 L.Ed.2d 275].)
New York Penal Law section 235.21, subdivision 3 made it a crime for an individual: “Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use[] any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.” The New York statute defined harmful matter in terms similar to the California definition (compare N.Y. Pen. Law § 235.20, subd. 6 with Pen. Code, § 313) and provided various affirmative defenses that have counterparts under California law. (Compare N.Y. Pen. Law § 235.15 with Pen. Code, § 288.2, subds. (c)-(e).)
The Pataki court also rejected the state’s claim that the law only affected intrastate activities. It reasoned that the language of the statute and its legislative history showed it was not limited to intrastate conduct, and instead was designed and intended to apply to any communication, whether intrastate or interstate, over which New York had the capacity to exercise criminal jurisdiction. (Pataki, supra, 969 F.Supp. at pp. 164-165 and 167.) The majority here asserts that section 288.2, subdivision (b) applies only to fully intrastate communications. However, there is nothing in the statute or its legislative history that supports a limitation of application from the full capacity to exercise criminal jurisdiction. (See discussion, post, at pp. 214-215.)
The principal basis for this conclusion was that although protecting minors from harmful matter was a compelling state interest, the local benefits from the statute were de minimis because (1) the law had no effect on communications originating outside the United States; (2) the law had little effect on persons outside of New York who were not readily subject to prosecution in New York; (3) other existing laws permitted prosecution of persons engaged in child pornography or child molestation; and (4) the testimony established that only a single person had been prosecuted under the law who would not have been prosecutable under other existing laws. Against this minimal benefit the court found significant burdens, both in the form of impinging on the sovereignty of sister jurisdictions, and in the form of chilling protected speech. (Pataki, supra, 969 F.Supp. at pp. 177-181.)
The hypothetical 19-year-old to 16-year-old e-mail would apparently violate no Alabama law. (See Ala. Code § 13A-6-110.) Moreover, a recent comprehensive survey of the laws in varying states demonstrates the diversity of laws throughout the country regarding the age of consent. (See Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason (1997) 22 Seton Hall Legis.J. 1.) There is no criminal liability for sexual conduct with children agel4 or older in Hawaii or for sexual conduct with children age 15 or older in Colorado. (Id. at p. 138, fn. 243.) Many states distinguish between “penetration” offenses and “sexual contact” offenses. For the so-called penetration offenses, only 12 states set 18 years old as the threshold age for consensual activity. For the so-called sexual contact offenses, only seven states set 18 years old as the threshold age for consensual activity. In the remaining states, consensual sexual contact is permitted between an adult and child who is 17 years old (four states), or 16 years old (22 states), or 15 years old (four states) or 14 years old (nine states) or even 13 years old (four states). (Id. at pp. 60-62.) For example, it appears that if Hatch *214engaged in consensual sexual contact with “Lisa” not involving penetration, he would have committed no crime in New Hampshire (N.H. Rev. Stat. Ann. § 632-A:3) or Tennessee (Tenn. Code Ann. § 39-13-504), and some forms of sexual contact between Hatch and Lisa would not be criminal in Virginia. (Va. Code Ann. §§ 18.2-67.3 & 18.2-63.)
The potential for multiple inconsistent laws has already emerged. In Alabama, it is a crime to use the Internet to seduce only when the user is 19 years or older and the recipient is under age 16. (See Ala. Code § 13A-6-110.) In Florida, the crime is committed only if the child resides or is believed by the perpetrator to reside in Florida. (Fla. Stat. Ann. § 847.0135.) In two states, furnishing indecent matter over the Internet to a person who the sender knew or should have known was a minor violates the statute (Ga. Code Ann. § 16-12-100.1; N.M. Stat. Ann. § 30-37-3.2, subd. A), although these statutes appear vulnerable under Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [117 S.Ct. 2329, 138 L.Ed.2d 874] (Reno). In Indiana, it is a crime to use the Internet to solicit sexual conduct with a child under the age of 14. (Ind. Code Ann. § 35-42-4-6.) In Virginia, the law bans use of the Internet to promote, produce or market “sexually explicit visual material” involving children under age 18 or to entice such children to perform in or be a subject of sexually explicit visual material. (Va. Code Ann. § 18.2-374.3.)
It is unnecessary to evaluate section 288.2, subdivision (b) under the Pike burden-benefit test.
Section 288.2, subdivision (b) defines the prohibited “harmful matter” as matter defined by section 313. Matter deemed harmful to minors under section 313 is not necessarily obscene-when viewed by adults. (Berry v. City of Santa Barbara, supra, 40 Cal.App.4th at pp. 1081-1083.) The People argue that if we conclude section 288.2, subdivision (b) is facially overbroad under the First Amendment because the banned content is defined by reference to section 313’s “harmful to minors” standard, we can uphold its constitutionality by construing it to apply only when the transmitter sends obscene matter because obscene matter enjoys no First Amendment protection. Although this construction eliminates much of the overbreadth problem, and I am cognizant that when possible we construe a statute to make it constitutional (Public Citizen v. Department of Justice (1989) 491 U.S. 440, 465-466 [109 S.Ct. 2558, 2572-2573, 105 L.Ed.2d 377]), a court may not under the guise of interpretation wholly rewrite a law to preserve its constitutionality. (City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 272 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313].) Matter indecent to minors but not adults is defined in section 313, and matter obscene to all persons is defined in section 311. To adopt the People’s argument requires the excise from section 288.2, subdivision (b) of the reference to section 313 and insertion of section 311 in its place, which is a legislative ' rather than judicial function.
Hatch has standing to raise this challenge even though his speech would be punishable without offending the First Amendment. Although constitutional rights are generally said to be personal, a well-established exception is found in the overbreadth doctrine associated with First Amendment jurisprudence. (Wurtz v. Risley (9th Cir. 1983) 719 F.2d 1438, 1440.) Under this doctrine, litigants may challenge a statute not because their own rights of free expression are violated, but because the existence of an overbroad statute may cause others not before the court to refrain from constitutionally protected expression. (Broadrick v. Oklahoma, supra, 413 U.S. at p. 612 [93 S.Ct. at pp. 2915-2916]; Wurtz v. Risley, supra, 719 F.2d at p. 1440.)
The California statute also provides leverage for an opponent of speech protected in other jurisdictions to exercise a heckler’s veto by logging on, informing the would-be speakers of the presence in the forum of a Californian under the age of 18, which could chill further communication among participants entitled to engage in the speech. (Reno, supra, 521 U.S. at p. 880 [117 S.Ct. at p. 2349].)
The commentators have recognized the problems presented in applying the Miller community standard test to matter transmitted over the Internet. (See, e.g., Burke, Cybersmut and *224the First Amendment: A Call for a New Obscenity Standard (Winter 1996) 9 Harv. J.L. & Tech. 87, 108-113 (Burke); Alexander, Jurisdiction and the Miller Obscenity Standard (Summer 1998) Seton Hall Const. L.J. 675, 677-680.)
In at least one reported case, U.S. v. Thomas (6th Cir. 1996) 74 F.3d 701, the danger of conflicting community standards creating criminal liability for cyberspace activity became reality. In Thomas, a California couple while in California posted matter on their Web site not deemed obscene in California. (Burke, supra, 9 Harv. J.L. & Tech, at pp. 116-117.) However, that matter was downloaded in Tennessee and formed the basis for prosecuting the couple under Tennessee law because the matter was deemed obscene under Tennessee’s more stringent standards. (Thomas, supra, at pp. 710-711.) Although the Thomas court concluded application of Tennessee’s standards posed no danger of chilling speech protected under the First Amendment, the court’s rejection of the First Amendment challenge turned on the fact that the defendants allowed a person they knew to be a Tennessee citizen to access to their matter in Tennessee. Because of this fact, reasoned Thomas, “[defendants’ First Amendment issue ... is not implicated .... This is not a situation where the bulletin board operator had no knowledge or control over the jurisdictions where materials were distributed for downloading or printing. . . . Defendants had in place methods to limit user access in jurisdictions where the risk of a finding of obscenity was greater than that in California. . . . If Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refiised [access to persons] in those districts, thus precluding the risk of liability.” (Id. at p. 711.) Unlike application of the Tennessee statute in Thomas, section 288.2, subdivision (b) does not predicate criminal liability on the defendant’s knowledge that the recipient is a California domiciliary to whom California’s community standards will be applied.
For example, the Pataki court noted that the Broadway play Angels in America, which concerned homosexuality and AIDS and received two Tony Awards and a Pulitzer prize, was acceptable in New York but condemned in North Carolina. (Pataki, supra, 969 F.Supp. at p. 182.) Reno echoed similar concerns that the variability of community standards could chill protected speech. (Reno, supra, 521 U.S. at p. 878 [117 S.Ct. at p. 2348].)
Hatch points out that the legislative history cited very few concrete examples of Internet child stalking, with only a single example involving a California perpetrator. (See Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 181 (1997-1998 Reg. Sess.) as amended Apr. 18, 1997, par. 2.) A casual review of newspaper articles reporting Internet communications potentially violative of section 288.2, subdivision (b) shows there may be many perpetrators *225but few victims. The “victims” appear overwhelmingly to be either adult investigative reporters, as in this case, or police officers. Except for sting operations, there may be very few crimes. When a statute imposes substantial burdens on First Amendment rights and produces minimal benefits, the courts have recognized that “ ‘the State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.’ ” (Carlin Communications, Inc. v. F.C.C. (2d Cir. 1988) 837 F.2d 546, 555.)
Section 288.2, subdivision (b) became effective on January 1, 1998, and section 288.2, subdivision (a) was the criminal statute potentially applicable to Hatch's 1997 Internet conduct. (Stats. 1997, ch. 590, § 1.)
Although I conclude section 288.2, subdivision (a) does not include Internet communications, there are additional reasons for concluding it would not cover those counts involving Hatch’s 1998 Internet communications (counts 13 and 19). The Legislature enacted subdivision (b) to provide specific standards for criminal liability when the Internet is used to distribute the harmful matter to minors. A specific statute relating to a particular subject will govern over a more general statute even though the latter, standing alone, is sufficiently comprehensive to encompass the subject to which the more specific statute relates. (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 988 [44 Cal.Rptr.2d 93].) Moreover, provisions of a statute should be read together and the courts should, where possible, adopt a construction in which all parts are given meaning and no part is made useless or surplusage. (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1144 [47 Cal.Rptr.2d 343].) Finally, when the Legislature has carefully employed a term in one statute but excluded it from a related statute, we should not imply the term into the statute from which it was excluded. (Grubb & Ellis Co. v. Bello (1993) 19 Cal.App.4th 231, 240 [23 Cal.Rptr.2d 281].) The People’s argument that Hatch’s 1998 conduct is subject to prosecution under subdivision (a) is inconsistent with each of these principles: it ignores that the Legislature by its enactment of subdivision (b) provided a more specific treatment of the subject; it makes subdivision (b) superfluous; and it requires that a term specifically included in subdivision (b) but excluded from subdivision (a) be judicially implied into subdivision (a).
The legislative history accompanying the 1997 enactment sheds no light on whether the Legislature intended section 288.2, subdivision (b) to change rather than clarify existing law. Although one legislative report states the bill was a “clarification of existing law rather than an addition to it” (Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 181 (1997-1998 Reg. Sess.) as amended Apr. 18, 1997, par. 2), another legislative report states “the Internet is not specifically covered [by existing law]. This bill would expand the law to also prohibit the use of the Internet ... to seduce a minor.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 181 (1997-1998 Reg. Sess.) as amended June 16, 1997, p. 1, at <http://www.leginfo.ca.gov> [as of Mar. 27, 2000].)
When a court evaluates a facial challenge to a statute and the statute is readily susceptible to a narrowing construction that avoids constitutional infirmities, we should adopt that interpretation. (Virginia v. American Booksellers Assn (1988) 484 U.S. 383, 397 [108 S.Ct. 636, 645, 98 L.Ed.2d 782].) Section 288.2, subdivision (b) is not readily susceptible to a narrowing construction because its express application to the Internet triggers both commerce clause and First Amendment issues. However, section 288.2, subdivision (a)’s criminalization of the distribution of harmful matter by any means is susceptible to an interpretation that it does not apply to Internet communications and is limited to other forms of distribution. When non-Internet forms of distribution are involved, the constitutional infirmities infecting subdivision (a) appear to evaporate. For example, a person who uses personal delivery to distribute harmful matter to a minor within California engages in wholly intrastate activity not subject to commerce clause prohibitions on state regulation, and the defendant is not engaged in speech protected in the locus of his action. A person who distributes harmful matter from outside California but uses methods requiring him to know the recipient is in California (e.g., through use of the mails, telephones or fax machines) knowingly subjects himself to application of California’s standards for determining age of minority and whether the matter is harmful under California standards (U.S. v. Thomas, supra, 74 F.3d 701, 711), thereby mooting the commerce clause concerns for multiple inconsistent burdens or extraterritorial projection of California law into other states, as well as mooting the claim he was engaged in protected speech. (Ibid.)
Hatch also argues that because section 288.2, subdivisions (a) and (b) define the requisite mens rea of the offenses as the intent or purpose of seducing the minor, and the term “seduce” is not sufficiently definite or specific to give notice of the proscribed intent, section 288.2 is invalid for vagueness under the due process clause of the Fifth Amendment. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116 [60 Cal.Rptr.2d 277, 929 P.2d 596]; Pryor v. Municipal Court (1979) 25 Cal.3d 238, 252 [158 Cal.Rptr. 330, 599 P.2d 636].) It is unnecessary for me to examine this contention because I have concluded that subdivision (b) is invalid for other reasons and subdivision (a) is inapplicable to Hatch’s Internet conduct. However, it would appear incumbent on the majority to evaluate this argument.