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Ninth Circuit:
Entire Law Banning Marketing Guns to Minors Is Likely to Fall
Panel Says That on Remand, District Court Judge Should Have Granted Preliminary Injunction Barring Enforcement of All Provisions in 2022 Statute, Rather Than Exempting Portion She Said Is Founded on Privacy Concerns
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has held that when, in 2023, it declared the likelihood that a California Business & Professions Code provision that bans ads for firearms aimed at minors will be found unconstitutional, it meant to question the validity of the entire law, reversing an order by District Court Judge Christina A. Snyder of the Central District of California declining, on remand, to preliminarily enjoin enforcement of a portion of the statute.
A three-judge panel—comprised of Circuit Judges Kenneth Kiyul Lee and Lawrence VanDyke, joined by Senior Circuit Judge N. Randy Smith—on Monday issued a memorandum opinion clarifying that its previous “constitutional analysis applies to the entirety of Section 22949.80.”
That earlier analysis came on Sept. 13, 2023, in Junior Sports Magazines Inc. v. Bonta. Lee authored the majority opinion, joined in by Smith; VanDyke penned a concurring opinion.
Lee wrote:
“[W]e hold that § 22949.80 is likely unconstitutional under the First Amendment, and we thus REVERSE the district court’s denial of a preliminary injunction and REMAND for further proceedings consistent with this opinion.”
He explained:
“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.”
That decision sparked a comment from Gov. Gavin Newsom that “[t]he court is fighting to protect marketing weapons of war to children,” adding:
“It is pure insanity.”
On remand, Snyder on June 18, 2024, ordered issuance of a preliminary injunction barring enforcement of §22949.80(a), which prohibits any ad for a “firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors,” as well as other portions of the “Marketing Firearms to Minors” law, but did not block implementation of subd. (b) which provides:
“A firearm industry member publishing material directed to minors in this state or who has actual knowledge that a minor in this state is using or receiving its material, shall not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile, the personal information of that minor with actual knowledge that the use, disclosure, or compilation is for the purpose of marketing or advertising to that minor any firearm-related product.”
Snyder explained in her order:
“Subsection (b)…appears to be a privacy regulation targeted specifically at efforts to market advertise firearms to minors, rather than a general regulation regarding the privacy of minors. The likely constitutionality of such a regulation has not been fully briefed and was not addressed by the Ninth Circuit, which only addressed the constitutionality of a ban on firearm advertisements to minors as opposed to a ban on collecting disseminating private information.”
Junior Sports Magazines Inc., publisher of Junior Shooters, and other plaintiffs challenging the 2022 statute, appealed from Snyder’s order to the extent that subd. (b) remained enforceable.
Reversal Explained
Monday’s opinion sets forth:
“[S]ubsection (b) suffers from the same constitutional flaw as subsection (a): it is a content-based restriction that the government has failed to justify.”
The judges elaborated:
“Like subdivision (a), § 22949.80(b) clearly targets only gun- related advertising and marketing, and there is nothing to indicate that it will materially advance any governmental interest. The state may not selectively burden otherwise-lawful speech in the name of protecting privacy, and the district court abused its discretion by enjoining only § 22949.80(a).”
Other Prosecutors
In her 2024 ruling, Snyder denied the plaintiffs’ request “to expand the injunction to include non-party District Attorneys, County Counsels, and City Attorneys that are not employed by, and do not represent, the state itself, seeing as these parties did not have an opportunity to be heard in this action.” She added, however, that she was granting “plaintiffs’ request for a mandatory injunction directing the Attorney General to issue an alert notifying District Attorneys, County Counsels, and City Counsels in California of this lawsuit and that enforcement of Section 22949.80(a) has been preliminarily enjoined.”
Lee, VanDyke, and Smith were in agreement, saying:
“Because Junior Sports has not provided any example of potential or actual improper enforcement of this statute by local officials or localities in the years since its enactment, we do not find it necessary to add them to the injunction.”
The case is Junior Sports Magazines Inc. v. Bonta, 24-4050.
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