The Volokh Conspiracy

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Free Speech

California Bill Aimed at Gun Advertising That Supposedly Targets Children


The bill, AB 2571, is discussed here; the discussion is of a proposed narrower version of the bill (the official, broader, draft is here). I just testified this morning against the bill; I was limited to two minutes, so the oral testimony had to hit just the main points (I expect to put together some more detailed written testimony later):

I think even the bill as proposed to be amended would be unconstitutional, for three reasons.

[1.] It would cover fully protected political speech, not just commercial advertising. A gun magazine publisher, for instance—or a gun advocacy group that publishes a magazine—would likely be covered as a "firearm industry member," because it was formed to advocate for use or ownership of guns, might endorse specific products in product reviews, and might carry advertising for guns. That publisher or advocacy group would be forbidden from using cartoon characters even in its fully protected political advertising urging gun ownership.

[2.] Even as to commercial advertising, the law is unconstitutionally vague: It covers any ads that are "attractive to minors," even if they are equally attractive to legal adult buyers. And the specific examples don't resolve the vagueness problem: They are only listed as examples, prefixed with the phrase "including, but not limited to."

[3.] And the law also covers constitutionally protected commercial advertising, such as the use of caricatures of minors or cartoon characters in ads that are clearly targeted at adults who lawfully buy guns that their children could use for legal hunting or target shooting. Indeed, California law expressly allows parents to have their children use guns this way under parental supervision. Parents may well wish to buy guns for their children to use for these purposes.

Here are the relevant excerpts from the proposal:

[This bill p]rovides that a firearm industry member shall not advertise, market, or arrange for placement of an advertising or marketing communication concerning any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.

[The bill r]equires a court, in determining whether marketing or advertising of a firearm-related product is attractive to minors, to consider the totality of the circumstances, including, but not limited to, whether the marketing or advertising:

a) Uses caricatures that reasonably appear to be minors or cartoon characters to promote firearm-related products.

b) Offers brand name merchandise for minors, including but not limited to, hats, t-shirts or other clothing, toys, games, stuffed animals, that promotes a firearm industry member or firearm-related product.

c) Offers firearm-related products in sizes, colors or designs that are specifically designed to be used by, or appeal to, minors.

d) Is part of a marketing or advertising campaign designed with the intent to appeal to minors.

e) Uses images or depictions of minors in advertising and marketing materials to depict the use of firearm-related products.

f) Is placed in a publication created for the purpose of reaching an audience that is predominately comprised of minors and not intended for a more general audience comprised of adults….

"Firearm industry member" shall mean one of the following:

i) A person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association engaged in the manufacture, distribution, importation, marketing, wholesale, or retail sale of firearm-related products.

ii) A person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association formed for the express purpose of promoting, encouraging, or advocating for the purchase, use, or ownership of firearm-related products that does one of the following:

A) Advertises firearm-related products.

B) Advertises events where firearm-related products are sold or used.

C) Endorses specific firearm-related products.

D) Sponsors or otherwise promotes events at which firearm-related products are sold or used.