Ninth Circuit Invalidates California Law Banning Gun Ads Aimed at Minors
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed an order denying a preliminary injunction against enforcement of a California law banning the advertising of any “firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.”
Judge Kenneth K. Lee authored the opinion putting a hold on implementation of Business and Professions Code §22949.80. He was joined by Senior Judge N. Randy Smith, and Judge Lawrence VanDyke wrote a concurring opinion.
The provision in question was enacted on June 30, 2022, and was signed into law the same day. It took effect immediately as an urgency statute.
Sec. §22949.80(e)(1) provides:
“Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation….”
Fearing that it would be found liable under the statute, Junior Sports Magazines challenged it on a First Amendment basis.
In his opinion reversing a decision by District Court Judge Christina A. Snyder of the Central District of California, Lee said:
“This case is not about whether children can buy firearms. (They cannot under California law.) Nor is this case about whether minors can legally use firearms. (California allows minors under adult supervision to possess and use firearms for hunting, target practice, and other activities.) And this case is not about whether California has tools to combat the scourge of youth gun violence. (It does.)
“Rather, this case is about whether California can ban a truthful ad about firearms used legally by adults and minors—just because the ad ‘reasonably appears to be attractive to minors.’ So, for example, an ad showcasing a safer hunting rifle with less recoil for minors would likely be unlawful in California. Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it ‘materially’ and ‘directly’ advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar.”
Lee said that the court will “assume that California’s law regulates only commercial speech and that… intermediate scrutiny applies,” adding that “even assuming that intermediate scrutiny applies, California’s advertising restriction likely imposes an unconstitutional burden on protected speech.”
“Because California fails to satisfy its burden to justify the proposed speech restriction, Junior Sports Magazines is likely to prevail on the merits of its First Amendment claim.”
VanDyke said in his concurring opinion:
“Under this law. those who want to discourage minors from lawfully using firearms (such as for hunting or shooting competitions) are tree to communicate their messages. Certain speakers (“firearm industry members”) who want to promote the sale of firearms to minors, however, are silenced. I agree with the majority opinion that, even assuming intermediate scrutiny applies, California’s nascent speech code cannot withstand it. I write separately to emphasize that laws like AB 2751. which attempt to use the coercive power of the state to eliminate a viewpoint from public discourse, deserve strict scrutiny. Our circuit’s precedent is ambiguous about whether viewpoint- discriminatory laws that regulate commercial speech are subject to strict scrutiny. In the appropriate case, we should make clear they are.”
The case is Junior Sports Magazines. Inc. v. Bonta, 22-56090.
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