It’s not often that we get to blog about gun advertising and the First (not Second) Amendment. But last month, a district court in the Eastern District of California ruled that California Penal Code § 26820, which prohibits a limited category of ads promoting the retail sale of handguns, was an unconstitutional burden on commercial speech in violation of the First Amendment. The law was challenged by a group of retail gun stores in California, some of which had been cited with violations of the law.
Enacted in 1923, Section 26820 prohibits gun dealers from displaying a “handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof … in any part of the premises where it can readily be seen from the outside.” Violation can lead to the loss of a gun dealer’s license. (Cal. Penal Code §§ 26800, 26715(b); Cal. Admin. Code tit. 11, § 4024.) The photo accompanying this post shows an example of the type of advertising at issue.
In ruling on cross motions for summary judgment, the court applied the familiar four-part test from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York to determine the constitutionality of the law:
"At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."
The parties didn’t dispute that the sale of handguns is a legal activity (the first prong), that the advertising in question was not misleading (also the first prong), or that California’s proffered interests – reducing handgun suicide and handgun crime – were substantial (the second prong). The third and fourth prongs, however, were the hotly disputed. Ultimately, the court sided with the gun dealers, holding that government not only had failed to demonstrate that the law directly advanced its interests (the third prong), but it also had failed to prove that the law was not more extensive than necessary to further those interests (the fourth prong).
To support the law, the state argued that (1) the law inhibited handgun purchases by people with “impulsive personality traits” and (2) that people with impulsive personality traits, as a group, are more likely to commit suicide and crimes that other members of the population. Describing this as “a highly paternalistic approach to limiting speech,” the court held that that California “may not restrict speech that persuades adults, who are neither criminals nor suffer from mental illness, from purchasing a legal and constitutionally protected product, merely because it distrusts their personality trait and the decisions that personality trait may lead them to make later down the road.”
Other key points made by the court to support its holding include:
- The court found that Section 26820 was “fatally underinclusive” because it restricted only a narrow category of ads. The court noted that the law did not prohibit a store from erecting “a large neon sign reading ‘GUNS GUNS GUNS’ or a 15-foot depiction of a modern sporting rifle.” Nor did it prohibit hand gun ads in print, on billboards, or on the radio. According to the court, this “gravely diminishes the credibility of the Government’s rationale” that the law would further its asserted interests.
- Nor was the court persuaded by the testimony of a government expert who had opined that “it is reasonable to conclude” that ads prohibited by the statute “contribute in a positive way to the impulsive purchase of handguns.” The court found that this expert’s opinion was based on general studies about impulse purchasing by consumers, not studies specifically designed to measure impulse purchases of firearms. Moreover, according to the court, these studies didn’t examine the potential for signs, like those prohibited by Section 26820, to increase gun purchases by the impulsive.
- Another government expert cited studies and testified that “[s]uicidal behavior is generally impulsive,” that “70% of suicide attempters act less than one hour after deciding to kill themselves” and that the most relevant factor in suicide is access to firearms by a person (including at home). The plaintiffs didn’t challenge these conclusions. However, they argued, and the court agreed, that the government had failed to demonstrate “the link that impulsive handgun purchases result in impulsive handgun suicides.” The court found that this expert’s testimony supported, at best, “the general notion that fewer handguns means less handgun suicide, rather than whether restricting impulsive handgun purchases would reduce handgun suicides.”
- Finally, the court disputed that the law was not more extensive than necessary. The court cited other existing legislation that more narrowly furthers the government’s interests, including laws that impose a ten-day waiting period before a purchaser can receive a gun. limit purchasers to one handgun purchase within a thirty-day period, and require gun purchasers to complete a firearm safety certificate program.
It is expected that California will appeal this ruling.
California "may not restrict speech that persuades adults, who are neither criminals nor suffer from mental illness, from purchasing a legal and constitutionally protected product, merely because it distrusts their personality trait and the decisions that personality trait may lead them to make later down the road.”