In a 1964 U.S. Supreme Court case involving a movie-theater owner convicted of an Ohio law banning the showing of obscene movies, Justice Potter Stewart famously said he could not "intelligibly" define obscenity, "but I know it when I see it." People still use that line to showcase the imprecision and irrationality of many laws.
How do we convict someone of something so hard to define? We often know when we see other absurdities, also, including an archaic statute now subject of a gun-related lawsuit filed this month in federal court. California Penal Code 26820 bans gun stores from displaying signs — visible from outside the premises — picturing handguns. They aren't allowed to display words-only signs that advertise the sales of handguns, either.
Rifles can be pictured. Stores may show images of handguns in advertisements that are not on their premises. And opponents of gun rights are free to display photographs and placards depicting handguns. Defenders of gun rights often rely on the Constitution's Second Amendment to protect gun ownership, but in this case the plaintiffs are relying on the First Amendment.
"The sale of handguns is not only legal — it is constitutionally protected," according to the brief filed on behalf of four Central Valley gun dealers. "The First Amendment protects truthful, non-misleading commercial speech promoting lawful products or services, but especially when the products or services are themselves protected by other constitutional rights, such as the right to abortion or the right to buy contraceptives …"
Those latter rights are not specified in the Constitution — but have been detailed in later court decisions. The plaintiffs argue that what's clearly protected for such "unenumerated" rights "must be at least as true for the enumerated right to bear arms … ."
The law was passed in 1923, as part of California's first package of serious gun-control laws (including restrictions on concealed carry and waiting periods). Brandon Combs, president of the Firearms Policy Coalition, told me his group had been looking to challenge this law for years given its obvious First Amendment implications.
The state Department of Justice's recent enforcement actions against these businesses provided the opportunity to sue given that he couldn't find similar laws being enforced in other states. The California attorney general's office has not yet responded to the complaint — and told me it can't comment on pending litigation.
Authored by Sacramento attorney Bradley Benbrook and UCLA law professor Eugene Volokh, the complaint says the state can argue two ideas. The first is handguns are so offensive to some people that the sight of them on a sign warrants a ban. The second possible argument is the government doesn't want people to buy handguns and hopes the ban will discourage sales.
It's hard to understand exactly how sign limits would effectively advance either aim.
Lindsey Zwicker, attorney for the San Francisco-based Law Center to Prevent Gun Violence, argues the law is about "protecting vulnerable populations like children." She hasn't looked closely yet at the complaint, but notes commercial speech is not protected by the Constitution and the courts at the same level as political speech.
I can't fathom, in our current world with its barrage of TV, movie and Internet images, how a ban on gun-sale signs would protect kids. Her point is right about commercial speech, as far as it goes.
"Commercial speech gets less protection," Volokh agreed, "but it still gets substantial protection." In 1975, he added, the U.S. Supreme Court struck down a ban on advertising abortions and contraceptives. It also has struck down bans on advertising booze and gambling. If the product is legal, the court offers wide protections for advertising it.
Volokh hopes the attorney general recognizes the law, enacted 50 years before the nation's high court detailed commercial-speech protections, is archaic and decides not to defend it. That would make sense. The law is neither intelligible nor sensible — and encourages officials to clamp down on other types of speech it doesn't like.
Most of us know an unconstitutional abridgement of the First Amendment when we see it.