I respectfully dissent to the most important part of the majority opinion, in which it holds that Garden Grove may require video surveillance in every cybercafe in the city, regardless of whether that cybercafe has experienced any gang-related violence, or, indeed, even any problems of the most minor nature.
This is an appeal by the city from the grant of a preliminary injunction by the trial court, which means that where there is a conflict or inference in the evidence, it must be drawn in favor of the trial court’s decision. Yet there was substantial evidence to support the trial court’s grant of a preliminary injunction against the city, particularly the intrusive video surveillance requirement. The majority only grudgingly acknowledges (and only in response to this dissent) that under the evidence submitted by the city, only three of 22 cybercafes have experienced “gang-related” violence, only two more have experienced serious crime of any kind (one of the two was a drug deal), nor do they tell the reader that the city’s own evidence concerning cybercafes in other cities showed no gang-related crimes at cybercafes outside of Garden *451Grove. That leaves 17 cybercafes which have experienced no serious problems, a fact which should be enough to require this court to affirm the trial court’s injunction, not overturn it.
It is the video surveillance issue, though, that is the most problematic, and the one with the most obvious privacy implications. Do my colleagues not realize the—there is no other word for it—Orwellian implications of their ruling today? They approve an ordinance which literally forces a “Big Brother” style telescreen to look over one’s shoulder while accessing the Internet.1
Sorry, I can’t go along with this emasculation of our state Constitutional right to privacy and with the concomitant infringement on the rights of freedom of speech and press.
As I show below, cybercafes deserve the protection of a strict scrutiny standard when regulations implicating privacy and freedom of speech are imposed upon them. But even if a strict scrutiny standard is not appropriate, a balancing standard certainly is. The majority have not even attempted a balancing of the respective interests. Rather, the essence of their opinion is nothing less than almost slavish deference to an unsupported and illogical conclusion of the city’s police chief and city council.
Granted, the majority do pay lip service to “narrow tailoring.” (See Ward v. Rock Against Racism (1989) 491 U.S. 781, 799 [105 L.Ed.2d 661, 109 S.Ct. 2746].) But they never explain why an ordinance which requires a video camera looking over your shoulder as you access the Internet is “narrow tailoring” under Ward.
It clearly isn’t. There are any number of substantial means by which the city’s interest in protecting against gang violence could be realized without video surveillance. Police patrols could be increased. Owners could be supplied with a list of gang-members who could be refused service. Security guards could be posted at those cybercafes which have already experienced gang-related violence. Yet the majority steadfastly refuse to confront such possibilities, all in the name of deference to “legislative facts” found by the city council. Whatever that is, it isn’t trying to minimize any burden on privacy or speech to what is reasonably necessary.
The majority also commit the logical error of generalization. Rather than confront the fact that only a small minority of cybercafe venues have *452experienced problems, they (illogically) leap to the idea that there is a “well-demonstrated” connection between cybercafes and gang-related violence. Sigh. They might as well say there is a “well-demonstrated” connection between homes and residential burglary, or, in Garden Grove at least, between Vietnamese restaurants and gang-related violence. To spell it out: The majority make the logical error of ascribing to all members of a class characteristics which apply to only a minority of members.
And that is not all. With today’s opinion, the majority additionally take a serious but unexamined step to approve an alarming trend in land use regulation, which is to fob off onto private citizens the governmental duty to provide police protection. The best one can say on this issue is that, by not seriously examining it, the majority leave it for another day (and hopefully better briefing).
Finally, the majority advance a weak and unpersuasive rationale to uphold the daytime curfew. There is no evidence that the absence of a daytime curfew is in any way a threat to minors, or that a curfew will prevent gang-related violence. Moreover, the majority is not willing to say, simply, that the curfew could be justified because the kids ought to be in school. But think about that rationale a little and you soon realize that a city could impose a daytime curfew on minors at Magic Mountain (think of the gang problems it had a few years back), Disneyland, Knott’s Berry Farm, Universal Studios or even the daytime Angels’ baseball games. And since neither I nor the majority are willing to go that far, I am forced to conclude there is no basis to overturn the trial court on that issue as well.
I. The Appropriate Standard Is Strict Scrutiny
The right to privacy is guaranteed by the state Constitution of California. (Cal. Const., art. 1, § 1.) As explained in Loder v. City of Glendale (1997) 14 Cal.4th 846, 891-892 [59 Cal.Rptr.2d 696, 927 P.2d 1200] and Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 34 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill), most of the time invasions on privacy are analyzed using a balancing test. Sometimes, however, such restrictions must be analyzed using the more rigorous strict scrutiny compelling state interest test. As Hill put it, “The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor” as to whether compelling state interest or balancing applies. (Hill, supra, 7 Cal.4th at p. 34.)
Government action “impacting freedom of expression and association” receives the compelling state interest standard. (Hill, supra, 7 Cal.4th at pp. 34, 50; see also White v. Davis (1975) 13 Cal.3d 757, 776 [120 Cal.Rptr. *45394, 533 P.2d 222] [compelling state interest required for government surveillance of classroom discussion]; Long Beach Employees Association v. City of Long Beach (1986) 41 Cal.3d 937, 948 [227 Cal.Rptr. 90, 719 P.2d 660] [compelling state interest required to justify polygraph examination of city employees]; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 273-282 [172 Cal.Rptr. 866, 625 P.2d 779] [compelling state interest required to overcome indigent woman’s privacy interest in reproductive rights].)
Cybercafes are not just your ordinary “retail establishment.”2 Cybercafes allow people who cannot afford computers (or, often, who cannot afford very high speed Internet connections) the freedom of the press. They can post messages to the whole world, and, in theory (if they get enough “hits”) can reach more people than read the hard copy of the New York Times every morning. It is thus telling that in defamation law, posting a statement to the Internet is considered “publication”—in a very real sense a Web site is publication every bit as much as the large presses of a major newspaper. As Judge Kozinski has noted about the freedom of the press inherent in access to the Internet: “For instance, look at Matt Drudge. He sits in his little apartment with a computer and trawls the Internet and overnight becomes a reputable news source—at least a to-be-feared news source.” (Calvert & Richards, Defending the First in the Ninth: Judge Alex Kozinski and the Freedoms of Speech and Press (2003) 23 Loyola L.A. Ent. L. Rev. 259, 276.) With the Internet, the average computer blogger has, in effect, his or her own printing press to reach the world. (Cf. ibid. [Judge Kozinski noting, given the rise of blogging, that “I think the division between press and ordinary speech has all but disappeared”].)
Cybercafes thus allow people who cannot afford computers (or the high speed connections) to access the global bulletin board of the Internet, i.e., the ability to receive what others have posted. Logging on is an exercise of free speech.
Consider that totalitarian governments have always cracked down on unrestricted access to the means of communication. When the Communists were in control of countries such as Albania and Bulgaria, each typewriter *454was licensed. Today typewriters are still licensed in Communist Cuba. (See Calvert & Richards, Defending the First in the Ninth: Judge Alex Kozinski and the Freedoms of Speech and Press, supra, 23 Loyola L.A. Ent. L. Rev. at p. 271 [quoting Judge Kozinski, “In Cuba, the last I heard, they were still registering typewriters”].)
Consider that in Communist Vietnam, the hunger for the free expression of ideas has led to a “cybercafe phenomenon.” As the American ambassador to Vietnam has noted: “Thousands of young Vietnamese are accessing the internet at scores of cybercafes across the country. They are obtaining and exchanging information, and many are doing so by finding innovative ways to circumvent the layered firewalls conservative elements of Vietnam’s government have placed on internet access. This story reflects the thirst of Vietnam’s young people for a tangible connection to the world beyond their borders. . . .” (Pearson, The U.S./Vietnam Bilateral Trade Agreement: Another Step in the Right Direction (2002) 10 U. Miami Bus. L. Rev. 431, 448.)
And consider that the governments of both Communist China and Vietnam have recently cracked down on cybercafes in an effort to curb the freedom of ideas that they promote—an effort that has entailed learning the identity of cybercafe users. (See Hughes, The Internet and the Persistence of Law (2003) 44 Boston C. L. Rev. 359, 369 [“the 2002 Chinese crackdown on cybercafes has included the installation of software that records attempts by cafe users to access banned sites”]; Calvert & Richards, Defending the First in the Ninth: Judge Alex Kozinski and the Freedoms of Speech and Press, supra, 23 Loyola L.A. Ent. L. Rev. at p. 271, fn. 64 [noting that “There is great concern, in fact, in China, as well as Vietnam, about the influence of the Internet on their political systems. According to at least one report, those countries ‘are cracking down on the proliferation of “cybercafes.” Recent regulations in these countries require cafe owners to police what web sites their customers are visiting and who they are e-mailing—or face arrest and incarceration’ ”].)
Given the constitutional ramifications of the very nature of cybercafes, I will go so far as to say that there is an expectation of privacy even as to one’s identity when using a cybercafe. In that regard, it is highly ironic that in Malaysia, the government recently tried to force all customers of cybercafes to register their names and identity card numbers. And then it backed down in response to complaints from foreign investors. (See Hang, Special Feature: The Financial Meltdown in Asia: Crisis and Response (1999) 3 Singapore J. Inti. & Comp. L. 1, 17, fn. 67.) Apparently my colleagues are willing to countenance infringements on the rights of cybercafe users which even the government of Malaysia is too ashamed to enforce!
*455Assuming that I am correct that infringements on the privacy of cybercafe customers require strict scrutiny, it is clear that the video surveillance condition cannot stand. But what if the proper standard is balancing?
II. The Majority Opinion Errs Even Under a Balancing Test
At the very least, as Loder and Hill teach us, infringements on privacy must pass muster under a balancing test. (See also Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656-658 [125 Cal.Rptr. 553, 542 P.2d 977] [balancing test used to weigh privacy of bank customers]; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 131-134 [164 Cal.Rptr. 539, 610 P.2d 436] [privacy interest in living with unrelated persons outweighed city zoning regulations].)
But balancing is not unqualified deference to city councils. A court cannot just turn over to the city the balancing under the guise that it does not want to “reweigh” the evidence. (See Long Beach Employees Association v. City of Long Beach, supra, 41 Cal.3d at pp. 943-949 [city’s interest in preventing theft because money was missing did not justify a blanket requirement that all employees take a polygraph test].)
The majority opinion makes no serious attempt to balance the right of privacy with the city’s interest in preventing gang violence. That would actually require looking at the facts and asking why only three of 22 cybercafes have experienced gang-related violence. It would also require asking—which the majority never do—why the governmental interests at stake here cannot be realized with much less intrusiveness than the blunderbuss approach taken by the city council.
At this point a little deconstruction of the majority opinion is necessary. Readers of the majority opinion will note that the rationale with regard to video surveillance of cybercafes is camouflaged. The majority doesn’t address the video surveillance question directly.3 Rather, the majority first avoids confronting the problem of video surveillance by erecting a straw figure and kicking it down. Some considerable space is devoted to refuting the idea that the city has required the video cameras to be pointed at the screens.
Well, thankfully, even this majority understands that that would be too much. But then the majority go on to approve of the requirement that there be video cameras at the cybercafes with the ipse dixit that video surveillance is “narrow tailoring.” Note that they do not explain why at that point in the opinion. Rather, the majority merely refers the reader to what was previously said about security guards.
*456But security and video cameras are hardly self-evidently analogous in a privacy context. A security guard is usually some guy standing around looking bored. A video camera is a permanent record of events, accessible to the police with a proper search warrant. Thus on page 447 of the majority opinion there is the declaration that the video surveillance requirement is “a content-neutral manner restriction, narrowly tailored to advance the city’s legitimate interest in public safety and deterrence of gang violence”—with the only attempt to explain why being “[f]or the reasons discussed, ante, in connection with the employee and security guard requirements.”
And what are those reasons discussed, “ante?” Well, that’s not clear from pages 444-445 of the majority opinion, which deal with the security guard issue. Much of that discussion concerning security guards and adult employees is not applicable to video cameras. However, the best I can make of the “reasons discussed, ante” is a statement found on page 445 of the majority opinion made in specific reference to security guards: “Given the well-demonstrated criminal activity observed at CyberCafes, and their tendency to attract gang members, the court should not have second-guessed the city council’s judgment and discretion.”
I will address the error of logic in this revealing sentence in part III below. For the moment, though, it is enough to note the absolute absence of any attempt to balance the interest in privacy with the city’s interest in preventing gang violence, nor specifically how the requirement of video surveillance in every cybercafe is not substantially broader than necessary to achieve that interest. Why not require video cameras at only those cybercafes which have already experienced gang-related violence? Why isn’t a security guard by himself or herself enough to protect the city’s interest? What could the owner do by way of refusing service to known gang members that would obviate the need for the intrusiveness of video cameras? None of these questions are remotely dealt with in the majority’s opinion, whose premise is that courts dare not ask them, lest they “second-guess” a city council’s decision.
The closest the majority comes to confronting the problem of privacy with regard to cybercafes is one statement on page 447 of the majority opinion: “Plaintiffs do not explain why persons in a public retail establishment have a protected privacy interest in either their activity on the premises or their physical features . ...” I have done so above. Cybercafes are not just ordinary retail establishments—they are the poor man’s printing press and private library.
*457III. The Majority’s Analysis In Regard to the Video Surveillance Issue Allows for An Irrational, Overinclusive Presumption
The key sentence in the majority opinion is this one, first made in connection with a security guard but later incorporated by reference into the discussion regarding the video cameras: “Given the well-demonstrated criminal activity observed at CyberCafes, and their tendency to attract gang members, the court should not have second-guessed the city council’s judgment and discretion.” (Maj. opn., ante, at p. 445.)
The error here is the logical fallacy of generalization. Note the indiscriminate, generalized term “observed at Cybercafes.” Not some cybercafes. Not what the record shows—three (or, at most, five) of 22 cybercafes. But “CyberCafes,”—a generalized generic category, sweeping over 17 problem-free sites, as well as the five which have had problems.
As I mentioned above, the majority opinion only grudgingly acknowledges one of the most interesting parts of the record, which is a survey of the problems which surrounding cities (many cities in Orange County and some in Los Angeles County)4 have had with cybercafes. Guess what? None reported any gang violence. Oh, there were a few instances of loitering in Los Alamitos, Cypress and in Long Beach. In Monterey Park there were “Concerns, police related,” but instances of gang violence are simply not to be found in that table. So the “gang” problem seems confined to Garden Grove. I will let some interested graduate student of social ecology at the University of California Irvine explain why, but the point is that the empirical evidence from other cities shows what is only intuitive anyway: There is nothing inherently attractive about cybercafes to “gangs.” For whatever reason, the most one can say here is that the gangs of Garden Grove have an idiosyncratic penchant for some cybercafes. And yet on the basis of problems at a minority of venues—and possibly unpreventable problems at that—the majority rubber stamps the city’s attempt to impose heavy security costs on all venues.
California law is inimical to such over-generalized thinking. To illustrate, let’s take a case where there are no First Amendment or privacy concerns, and where the federal Constitution allows the states to regulate to their heart’s content. The sale of alcoholic beverages.
In Laube v. Stroh (1992) 2 Cal.App.4th 364, 367-368 [3 Cal.Rptr.2d 779], the Department of Alcoholic Beverage Control wanted to yank the license of the upscale Pleasanton Hotel because undercover officers had managed to pull *458off a concealed sale of illegal drugs in its lounge. The theory was that the hotel had “permitted” the sale, by not taking every conceivable measure to prevent such sales, including, as the appellate court so brilliantly put it, “Orwellian schemes of customer surveillance inconsistent with contemporary societal values.” (Id. at p. 371.) The Court of Appeal rejected that sort of mandatory intrusiveness, noting there had been no differentiation between places such as the Pleasanton Hotel and seedy bars where crime was indeed more of a threat.
It is the same here. The evidence only supports restrictions at three cybercafes for gang-related incidents, maybe two more for other kinds of serious crime, but none at all for the remaining 17 cybercafes in the city. The majority merely rubber stamp the overgeneralization of the police chief: A minority of cybercafes have had “well-demonstrated criminal activity” ergo very intrusive restrictions are justified on all cybercafes. And the exasperating part is that the majority make no attempt to show any organic, logical or even empirical relationship between the nature of the cybercafe business and what crime has occurred. It’s as if they are saying, “don’t ask us to think, if the police chief believes there ought to be blanket restrictions on all cybercafes, that’s good enough for us.”
IV. The Majority Analysis With Regard To the Security Guard Issue Suffers from the Same Sin of Generalization
What I have just said as to overinclusive presumptions applies just as much to the burden of imposing private security guards on private businesses, even though security guards and adult employee requirements obviously do not implicate the same privacy (and perhaps free speech) concerns that are implicated by mandatory video surveillance. The evidence, at the most, supports the imposition of a security guard requirement on five of 22 cybercafes, and only then if you assume that being the owner of a business which has experienced crime can justify a direct government imposition of a security guard requirement. (Usually, when there have been repeated crimes at a business, the threat of a civil tort lawsuit is enough to prompt an owner to take extraordinary security measures.)
Here, there is nothing in the record to indicate that any of the owners of the cybercafes which have experienced violence did anything to encourage it. What was their wrongdoing? Calling the police if there were troublemakers frequenting their business?
Under the majority opinion innocent business owners can have private security requirements imposed upon them just because a member of the class *459of businesses has experienced crime. But at this point I must go a little deeper, and suggest that the record is susceptible of a motive to punish cybercafes qua cybercafes.
Consider: Private residences are “notorious” and “well-documented” venues for home burglaries. And it is common knowledge in Orange County that in Garden Grove, Vietnamese restaurants have often been the scenes of gang violence. It would be very easy to say, in the language of the majority opinion, that there is “well-demonstrated criminal activity” which has been “observed” at the city’s restaurants and residences. But the city has not (yet) required security guards for restaurants or new residential construction.
The obvious inference is that the city is picking on cybercafes. No city council would dare require private security guards for private residences or restaurants, even though—I repeat—there is just as much reason to impose such requirements if one sticks to the rationale of the majority opinion. And yet if any difference exists, ironically enough, it cuts in the direction of more freedom for cybercafes: They implicate freedoms of the speech and press, while eateries and residences do not.
V. The Majority Analysis With Regard To the Security Guard Issue Ignores the Problem of Delegation
This case is an example of an alarming trend in municipal government whereby cash-strapped cities and counties have discovered that they can effectively shift the costs of police protection from the public to private parties. The delegation issue has, however, not been briefed. I would therefore note that the majority opinion cannot be read to endorse this trend. The issue remains open for exploration in a future case.
VI. The Majority Analysis With Regard To the Curfew Issue Is Not Supported by the Evidence
The majority takes the trial judge to task for “impermissible fact-finding” when he concluded that there was no evidence the school-hours curfew bears any relationship to public safety. For what it is worth, on that narrow point the trial court was right. There is no evidence that any of the crimes took place during school hours. Moreover, the only inherently logical nexus (and one not even attempted by the majority) between being patronized by students playing hooky and gang violence is at best a weak one, i.e., that kids who play hooky are more likely to be gang members than kids who don’t, but that is at best speculation given this record (the difference may be slight indeed).
*460Given this (lack of evidence), I think the trial court was right. If you believe otherwise, then Disneyland, Knott’s Berry Farm and other amusement parks had better look out. The same paucity of evidence which the majority use today to justify the curfew could be used to impose one at any amusement park or business where a sizable part of the customer base are minors.
VII. Conclusion
The majority opinion represents a sad day in the history of civil liberties. They see no infringement on privacy when a video camera is, literally, looting over your shoulder while you are surfing the Internet.
Constitutional freedoms are most fragile at the local level. If a bill were introduced in Congress to require video surveillance in cybercafes, you would hear about it in no uncertain terms on the op ed pages of most major newspapers. But because this case is confined to Garden Grove and most affluent people already have computer access to the Internet (though not, usually, high speech access), the majority reason, “what’s the big deal?”
Here’s the big deal. This is the way Constitutional rights are lost. Not in the thunder of a tyrant’s edict, but in the soft judicial whispers of deference.
Inaccurate metaphor? (See State v. Costin (1998) 168 Vt. 175, 183 [720 A.2d 866, 871] (dis. opn. of Johnson, J.).) Readers who contemplate the governmentally required installation of video cameras behind them while they operate a computer can decide for themselves whether today’s decision doesn’t take us much closer than we already are to a “Big Brother” society.
It will not do, as the majority reason, to say that this case has nothing to do with privacy because the video cameras will not necessarily record screen images and no one has any privacy interest whilst visiting a retail establishment. Even in the most mundane retail establishment no one would think of putting a video camera in the public restrooms. To the degree that Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1, 24 [81 Cal.Rptr.2d 6] is taken out of context and read for the overbroad, blanket, and when you think about it, frightening proposition that there is no privacy right at all in a public restroom, even in the toilet stalls, I disassociate myself from the opinion. And I doubt that the other member of the Tily B. panel, the late Justice Thomas Crosby, would go along with the proposition either.
Except in footnotes in response to this dissent.
For some reason Irvine is not listed. For some reason Monterey Park is.