A California law ostensibly aimed at restricting the marketing of firearms to minors infringes on the free speech rights of adults, according to a three-judge panel on the Ninth Circuit Court of Appeals. In its ruling handed down on Thursday morning, the panel vacated a lower court decision denying an injunction against the law’s enforcement and delivered a resounding win for both First and Second Amendment advocates.
Writing for the majority, Judge Kenneth Lee ruled that the law forbidding marketing and advertising firearms that “reasonably appear to be attractive to minors” is likely to infringe on the First Amendment, given that the statute is so broadly written that advertisements aimed at adults who can lawfully purchase a firearm would be swept up in its provisions.
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. 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. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors. 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. The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech.
California’s law is also more extensive than necessary, as it sweeps in truthful ads about lawful use of firearms for adults and minors alike. For instance, an advertisement directed at adults featuring a camouflage skin on a firearm might be illegal because minors may be attracted to it.
While the state of California had argued that the statute didn’t violate the First Amendment given the broader latitude given to regulations on commercial speech, the panel was unswayed, with Lee writing that even under a lowered standard of intermediate scrutiny the law fails to pass constitutional muster in light of the fact that the “state has made no showing that broadly prohibiting certain truthful firearm-related advertising is sufficiently tailored to significantly advance the state’s goals of preventing gun violence and unlawful firearm possession among minors.”
Hellbound and Down 