Judge: Calif. ban on gun stores' advertising handguns on signs likely violates First Amendment —but won't be temporarily halted

(Photo courtesy of Tracy Rifle & Pistol.)

As I noted in November, I'm consulting on an interesting First Amendment gun case. Cal. Civil Code § 26820 (which was first enacted in 1923, but is still being enforced today) provides,

No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.

We argue that this violates the First Amendment; here's the Introduction to our motion for preliminary injunction:

The sale of handguns is not only legal—it is constitutionally protected. The First Amendment protects truthful, nonmisleading 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.[1] What is true for unenumerated constitutional rights must be at least as true for the enumerated right to bear arms, which includes the right to possess and acquire handguns.[2]

Plaintiff firearms dealers are therefore constitutionally entitled to convey truthful commercial information about handguns to the public, and the public has a corresponding interest in receiving that information. This includes plaintiffs' right to advertise their products on-site—an especially useful form of advertising for sellers and consumers alike.[3] Yet California Penal Code § 26820 ("Section 26820") prevents a firearms dealer from displaying any "handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof" anywhere that can be seen outside the four corners of its store. Section 26820 thus unconstitutionally prevents firearms dealers from advertising even the most basic commercial information—"Handguns for Sale"—at their places of business.

The government's defense of Section 26820 would presumably rest on one of two theories. First, the government might argue that some people find handgun advertising offensive, and do not wish to see it in public places. But that "advertisements" might be "offensive … to those exposed to them" is "classically not [a] justification[] validating the suppression of expression protected by the First Amendment," including advertising. Carey, 431 U.S. at 701. And the Court has "specifically declined to recognize a distinction between commercial and noncommercial speech that would render [the] interest [in preventing offense to viewers] a sufficient justification for a prohibition of commercial speech." Bolger, 463 U.S. at 71-72.

Second, the government might argue that it wants to decrease handgun ownership, presumably on the theory that this will decrease violence or injury. But even if decreasing handgun ownership is a permissible justification for government regulations following Heller, it cannot justify this speech restriction. Even if California believes that buying a handgun is a bad decision, "the 'fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech." Sorrell v. IMS Health Inc., 564 U.S. ___, 131 S. Ct. 2653, 2670-71 (2011) (citation omitted). The Supreme Court has "rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information." Thompson v. Western States Medical Center, 535 U.S. 357, 374 (2002).

"The choice 'between the dangers of suppressing information, and the dangers of its misuse if it is freely available' is one that 'the First Amendment makes for us.'" Sorrell, 131 S. Ct. at 2671 (citation omitted). So long as responsible, law-abiding adults may purchase handguns in California, the First Amendment prevents the State from enforcing Section 26820's ban on on-site handgun advertising.

[1] See Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (striking down ban on abortion advertisements, partly because "the activity advertised pertained to constitutional interests," citing Roe v. Wade, 410 U.S. 113 (1973)); Carey v. Population Servs. Int'l, 431 U.S. 678, 700-01 (1977) (striking down ban on contraceptive advertisements, partly because "the information suppressed by this statute 'related to activity with which, at least in some respects, the State could not interfere'" (citation omitted)); Bolger v. Youngs Drug Prods., 463 U.S. 60, 69 (1983) (striking down ban on mailing contraceptive advertisements, partly because "advertising for contraceptives … relates to activity which is protected from unwarranted state interference").

[2] The ability to obtain a handgun is central to a citizen's ability to exercise the core guarantee secured by the Second Amendment: "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see id. at 628 (handguns are the "class of 'arms'" "overwhelmingly chosen by American society for [the] lawful purpose [of self-defense]"); id. at 628-29 (handguns are "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family.").

[3] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566-67 (2001); Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 93 (1977).

Yesterday, the district court agreed that the law likely violates the First Amendment—but still refused to issue a preliminary injunction against the law's enforcement. Here's a summary of the court's analysis, and my (obviously not impartial) thoughts on the subject:

1. The court concluded that the government may sometimes "restrict advertising in order to dampen demand" for a product—including a product that is lawful and constitutionally protected, such as handguns.

I don't think that's right. The Supreme Court held, in Sorrell v. IMS Health Inc. (2011), that "[a] state 'may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements'"—"[t]hat the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers." And in Thompson v. Western States Medical Center (2002), the Court "rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information."

The district court pointed to some older cases that seemed to authorize such restrictions (as well as a recent Ninth Circuit case involving advertising of prostitution), but I think those cases either aren't fully on point, or don't overcome the recent authority of Sorrell and Thompson. For instance, the Court cited U.S. v. Edge Broadcasting (1993), a case from a time when commercial advertising restrictions were reviewed more deferentially. And Edge did note that, "[i]f there is an immediate connection between advertising [for gambling] and demand, and the federal regulation decreases advertising, it stands to reason that the policy of decreasing demand for gambling is correspondingly advanced." But that case involved a restriction on speech promoting a product—gambling—that was actually illegal in many of the jurisdictions in which the regulated speech (broadcast advertisements for lotteries) was heard. Here, the speech promotes a product that is legal everywhere (like the pharmaceuticals involved in Sorrell and Thompson) and is indeed constitutionally protected everywhere.

For more on the state's argument on this issue, and our reply to that argument, which generally deals with the other precedents the court discusses, see the state's response to our motion for preliminary injunction and our reply brief.

2. Nonetheless, the court concluded that the restriction was still likely unconstitutional. The court applied the so-called Central Hudson test for commercial advertising restrictions, but that test holds that, to be constitutional, a restriction must directly advance the government's stated interests. The government argued that "it is reasonable to conclude that impulsive handgun purchases made after a customer sees an advertisement outside the store—as opposed to purchases made with deliberation after the customer has already entered the store—contribute to greater handgun crime and violence." But, as the court noted,

[I]n light of the fact that there is a ten day wait period between the time of the buy and the release to the purchaser, the fact that there are not corresponding advertising restrictions on other firearms such as rifles, and the fact that handgun advertisements are not banned from online, broadcast, and print media, the Government's … argument is unsubstantiated.

In particular, the fact that there is a ten day waiting period [under California law] between the purchase and the transfer of the firearm calls into question what an "impulse buy" would mean. One obvious scenario underlying the Government's justification would be a person wanting to commit a violent act, seeing the sign "Handguns for Sale" while passing a store, taking possession of the handgun at that time, and then carrying out the act. But generally speaking, this type of scenario is not possible given a ten day waiting period.

It is possible that the Government wishes to lessen purchases by the type of person who would buy a handgun on impulse after seeing an advertisement visible from outside the store, and who would proceed into the store to start the paperwork process even if she could not take possession at that time. However, the Government does not identify evidence—and there is not an obvious common sense connection—leading to the conclusion that limiting purchases by this type of person either materially limits the numbers of handgun purchases in California, or materially limits the handgun crime and violence associated with such purchases….

The Government does not meet its burden of showing that the Central Hudson elements, in tandem with the additional First Amendment principles discussed above, are met. … On balance—based on the arguments and evidence currently before the Court—the Court … finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.

3. The court also agreed that, for purposes of determining whether to issue a preliminary injunction, the likely denial of First Amendment rights is treated an "irreparable injury" that counsels in favor of blocking the likely unconstitutional speech restriction:

In this case, section 26820 does not involve an incidental inhibition on First Amendment rights; rather, its only purpose is to target a specific type of commercial speech, subject to DOJ enforcement. Therefore, the Court follows the plain directive from [previous cases] and so finds Plaintiffs, because they have shown a likelihood of success on the merits on their First Amendment claims, also show a likelihood of irreparable harm.

But the court concluded that this harm "carr[ies] minimal weight" in the injunctive relief test, because it sees the advertising restriction as narrow:

Plaintiffs are not prevented from advertising handguns in a similar way in other media, from advertising firearms in general in a way visible from outside the store, or from advertising other firearms such as hunting rifles in a way visible from outside the store. So it appears that there are alternative means by which Plaintiffs' message that they sell handguns can be conveyed. It is the Government's point that a passerby seeing an advertisement "Handguns for Sale," or a picture of a handgun, might be uniquely motivated to enter the store to make a purchase. But it is also reasonable to infer that the same customer, viewing an advertisement that states only "Guns for Sale" in large neon letters, may still enter the store impulsively. It is also reasonable to infer that the same customer will understand that the store sells handguns simply by virtue of the fact that it sells guns. Drawing this inference perhaps shows the pointlessness of section 26820. But the fact that section 26820 is so narrowly drawn does not weigh in Plaintiffs' favor for the purposes of finding irreparable harm.

As you might gather, my view is different: The First Amendment protects people's right to speak the way they choose to speak, using the words and pictures they prefer, not using ones the government demands instead. There are some exceptions to this principle (including the greater limits allowed on commercial advertising), but as the court correctly held, they aren't applicable here. That a law likely unconstitutionally restricts First-Amendment-protected speech—even if the restriction isn't an outright ban on all gun store advertising—should carry much more than minimal weight.

4. But though the "likelihood of success on the merits" and "irreparable injury" factors of the preliminary injunction analysis came out in the challenger's favor, the court still refused to temporarily block the law, based on its view of the "public interest" factor of the analysis:

The costs of being mistaken, on the issue of whether the injunction would have a detrimental effect on handgun crime, violence, and suicide, would be grave. …. By contrast, the cost of continued compliance with section 26820 during the pendency of this lawsuit appears to render little harm to Plaintiffs, outside of the inherent harm imposed by a violation of their First Amendment Rights. With due consideration to the serious First Amendment questions raised by Plaintiffs, and their likelihood of success on the merits, the implications of being mistaken in this case indicate it is in the public interest to deny the injunction, and the balance of the equities tips in the Government's favor.

The court therefore concluded that the law shouldn't be blocked until there is "further fact finding and more formal guidance," such as that available in a bench trial on the facts.

I likewise think this isn't right, for the reasons the court itself identified (see Item 2 above): Whatever one might say of laws that restrict truthful advertising to prevent crime or suicide facilitated by "impulse buying" of handguns, California law prohibits such impulse buying, by requiring a 10-day waiting period. (Note that the waiting period law was partly blocked as to people who already have guns registered to them, but the impulse-buying rationale doesn't really apply to them. And while the order blocking that aspect of the waiting period also applies to people who have concealed carry licenses, the decision in that earlier case explained why a cooling-off period is not likely needed for concealed carry license-holders.)

As we noted in our reply, the "impulse buying" rationale for the law rests thus on a rather far-fetched argument. It imagines a person who is in the grip of some emotion (presumably anger, jealousy or depression). He "otherwise might not enter [a] store" (to quote the state) to buy a handgun—even though he is seized by an emotion that presumably makes him contemplate violence, and even though everyone knows that handguns are commercially available.

That the store is free to have a sign saying "Guns" and has signs depicting rifles or shotguns does not influence him at all. But when he sees the word "handguns" or a picture of a handgun, he "respond[s] on impulse," and then waits 10 days to get a handgun that he otherwise wouldn't buy. After those 10 days are up, he then proceeds to commit a handgun crime (or commit suicide). His rage or depression is thus strong enough to last 10 days—but so weak that they wouldn't drive him to get a handgun, were it not for an ad that specifically depicts or mentions a handgun (as opposed to some other gun).

The court agrees that this sort of argument isn't reason enough to justify a restriction on speech promoting handguns. I think it likewise can't justify keeping in place a restriction that the court has recognized likely violates the First Amendment; instead, as is normal for such likely unconstitutional speech restrictions, the restriction should be preliminarily enjoined while the litigation proceeds.

Or that, in any event, is my view (and the view of my clients).