Like the provision of newspaper racks in a city, the provision of access to the Internet and computers is conduct that might not carry a message itself but is nevertheless closely related to expression. The Supreme Court has affirmed that the Internet is subject to the same First Amendment scrutiny as print media, suggesting that providing access to the Internet would be associated with expression….
Further, operation for profit has no effect on First Amendment protection. Bookstores, movie theaters, and newsstands all operate for profit and are undisputedly protected under the First Amendment. Moreover, it makes no difference that the conduct here is the provision of access to means of expression, as opposed to the expression itself (or even the consumption of it). It is enough that the prohibition targets only conduct commonly associated with expression. The Court finds that the Ordinance is subject to First Amendment scrutiny….
Defendant adopted the Ordinances to promote the public health, safety, and welfare of Hayward by pausing development of certain types of new businesses, especially those providing sweepstakes, whose legality and effect on Hayward remains undetermined. Defendant also wanted to avoid inviting problems it observed in other cities from arising in Hayward….
However, even though Defendant’s interest is substantial, the Ordinance is not narrowly tailored…. Defendant’s goals may be significant, but its findings in support of the Ordinances point to a far narrower solution than the one it enacted in Ordinance No. 13–03 and extended in Ordinance No. 13–05. If Defendant’s goal was essentially to pause development of the rapidly growing subset of Computer Gaming and Internet Access Businesses that provide sweepstakes promotions — the only such businesses really at issue in this case — it could have prohibited those specifically. Instead, Defendant has enacted an ordinance that burdens substantially more speech than is necessary by prohibiting any business from allowing any customer to pay to use a computer or electronic device for practically any reason….
The First Amendment also requires that content-neutral time, place, and manner restrictions leave open ample alternative channels of communication. The Court does not find that there are such alternative channels in this case. If a business wants to provide a computer or device to its customers and charge for its access, it is forbidden to do so. Schools, libraries, non-profits, and other such institutions can continue to provide computer labs and lend laptops, for example, but no one else is permitted to do the same if they expect compensation or reimbursement. This cuts off alternative channels of communication both for businesses that want to provide computer- or Internet-related services for their customers, and for customers who would otherwise have had access to those services.
Sounds right to me.