Saying the law amounts to a “muzzling of speech” that would “straitjacket the First Amendment,” a federal appeals panel has barred the state of California from enforcing its new law regulating the firearms’ industry’s advertising to minors.
On Sept. 13, a three-judge panel of the U.S. Ninth Circuit Court of Appeals said a lower court judge was wrong to deny a request by gun sellers for an injunction to stop the state from enforcing the newly enacted law, known as AB2571.
That law, enacted by the Democratic supermajority in Sacramento and signed by Democrat Gov. Gavin Newsom in 2022, would make it illegal for firearms manufacturers and sellers to advertise guns in such a way that the state determines is intended to make the firearms “attractive to minors.”
The law would allow the state to hit companies it believes has violated the rule with fines of up to $25,000 per violation.
The law was immediately challenged by Junior Sports Magazines Inc., which publishes Junior Shooters magazine, which focuses on firearms-related activities and products. The Junior Shooters lawsuit asserted the law violates their rights to free speech, and amounts to unconstitutional viewpoint discrimination by the state of California against groups – in this case, gun sellers – that the Democrats who control the Capitol oppose and wish to silence.
The publishers noted the law had compelled them to stop distributing their publication in California out of fear of potentially financially ruinous action against them by the state.
U.S. District Judge Christina A. Snyder, of the Central District of California, however, rejected their request for a preliminary injunction blocking enforcement of AB2571. In that ruling, Judge Snyder said Junior Shooters was not likely to win the case, because the law only applied to so-called “commercial speech,” or speech that is delivered to promote a business or financial goal. Therefore, the judge determined the law was likely constitutional, because it was “no more restrictive than necessary to advance the government’s substantial interest in reducing unlawful firearm possession and preventing violence.”
On appeal, however, the appeals court judges said that reasoning was incorrect, as the judge improperly relied on California’s “fact-free” defenses of its law.
“Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment ‘significantly’ decreases unlawful gun use among minors,” Judge Lee wrote.
“The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech.”
Lee noted, for instance, that the state could provide no evidence of any minor ever acquiring a handgun illegally because of firearms industry advertising, or that “truthful ads about lawful uses of guns … encourage illegal or violent gun use among minors.”
Further, Lee wrote, the state did not take any action to limit the ability of minors to possess and use firearms – a move the judges noted would have met with large political opposition.
“While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not ‘directly’ and ‘materially’ further either goal,” Lee wrote. “California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms.”
In a special concurring opinion, Judge Van Dyke urged his colleagues and the U.S. Supreme Court to go further in future rulings.
While this case did not require it, Van Dyke said he believed courts in future cases should take action against state governments, like California, that are “eager to impose their vision of rightthink on the people,” hiding behind the exception for the regulation of “commercial speech” to enact laws specifically targeting the speech of politically disfavored groups.
Van Dyke called AB2571 “a particularly egregious example” of such a law.
“This case illustrates one aspect of the damage done to our republic by the commercial speech doctrine,” Van Dyke wrote. “It has become an attractive nuisance to reactive legislatures that reflexively attempt to target ideas the legislature finds disagreeable.”
Junior Shooters was represented in the case by attorneys Anna M. Barvir and Carl D. Michel, of Michel & Associates PC, of Long Beach; and Donald Kilmer, Law Offices of Donald Kilmer, of Caldwell, Idaho.