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A state appeal court ruled Thursday that cities aren’t violating the First Amendment by forcing Internet cafe owners to implement extreme security measures, such as security guards and video surveillance cameras. But the decision, upholding an ordinance ostensibly aimed at curbing gang-related violence, drew an unusually sharp dissent from one justice, who accused the majority of blessing Orwellian “Big Brother” governmental oversight. “The majority opinion represents a sad day in the history of civil liberties,” Fourth District Court of Appeal Justice David Sills wrote. “They see no infringement on privacy when a video camera is, literally, looking over your shoulder while you are surfing the Internet. “This is the way constitutional rights are lost,” he continued. “Not in the thunder of a tyrant’s edict, but in the soft judicial whispers of deference.” Sills called the majority ruling an “emasculation” of the state right to privacy and an “infringement” of speech and press rights. Faced with rising gang activity at Internet cafes — the number of which had grown from three to 22 in two years — the Orange County city of Garden Grove in 2002 placed a moratorium on more cafes. It also prohibited minors from visiting the cafes during school hours, required uniformed security guards on Friday and Saturday nights, and demanded the installation of video surveillance systems. Cafe owners filed suit, claiming violations of their free speech and privacy rights. Orange County Superior Court Judge Dennis Choate agreed, saying the ordinance was overly burdensome and not narrowly tailored to avoid First Amendment problems. But the Santa Ana-based Fourth District disagreed on both grounds, saying that the city’s “time, place and manner restrictions” on First Amendment activities were narrow and were adopted for legitimate governmental reasons. “Given the well-demonstrated criminal activity observed at cybercafes, and their tendency to attract gang members,” Justice Raymond Ikola wrote, “the court should not have second-guessed the city council’s judgment and discretion.” Justice William Bedsworth concurred. In his dissent, Justice Sills argued that the city’s ordinance isn’t warranted because violence had been reported at only five Internet cafes. “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,” he wrote. Sills also accused Garden Grove of “picking on” Internet cafes, and said the court’s majority had chosen to “fob off” onto private citizens the government duty of providing police protection. “No city council would dare require private security guards for private residences or restaurants,” he wrote, “even though — I repeat — there is just as much reason to impose such requirements if one sticks to the rationale of the majority opinion.” The justices’ sniping in the ruling was extraordinarily tart , with the majority using footnotes to counter various of Sills’ allegations, which included that they countenanced a Big Brother atmosphere and encouraged laws more restrictive than those of many communist countries. In his most pointed jab, Sills cited a failed effort by Malaysia to register the names and identity card numbers of all Internet cafe customers. “Apparently,” he wrote, “my colleagues are willing to countenance infringements on the rights of cybercafe users which even the government of Malaysia is too ashamed to enforce!” “Wow!” the majority responded in a footnote. “We will not respond in kind. We prefer to debate the issues on the merits.” Plaintiffs’ lawyer Ronald Talmo, a Santa Ana solo practitioner, couldn’t be reached for comment. But M. Lois Bobak, a partner at Orange’s Woodruff, Spradlin & Smart who represented the city, was pleased with the decision. “The ruling validates the city’s underlying goal of trying to reduce the potential of crime at cybercafes,” she said, “particularly crime involving minors.” Asked about Sills’ dissent, Bobak said, “It’s obvious that there was some pretty spirited debate among the justices.” The case is Vo v. City of Garden Grove, 04 C.D.O.S. 861.

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