Friday, September 22, 2023

Ninth Circuit Three Judge Panel Reinforces Free Speech, Finds for Preliminary Injunction



On September 13, 2023, a three judge panel of Ninth Circuit Court of Appeals held California AB2571, which broadly limits the commercial speech of people promoting the sale of firearms or firearms products or events where firearms products are used or sold, was probably unconstitutional.  For example, this would include virtually all gun shows.  The three judge panel stopped enforcement of the bill. The California Goverment had passed the bill into law a bit more than a year earlier.

On June 30, 2022, the California Governor signed AB 2571 into law a sweeping new restriction on the commercial speech of firearms industry members. The bill sought to prevent advertising of any firearm-related product which "reasonably appears to be attractive to minors". Firearms-related product was broadly defined, as was "firearms industry member". In effect, the legislation would shut down most advertising for firearms or related products such as accessories, ammunition, reloading components, or, likely, shooting sports, hunting, or self defense. The Bruen decision restoring the right to carry arms in public places had been published on June 22, only eight days before the bill passed.

A lawsuit had quickly been filed against the enforcement of the bill. The District court ruled in favor of the government. An appeal was filed to the Ninth Circuit on Novmeber 22, 2023.

The three judge panel found against the California government. Here is their unanimous judgement. From

The panel reversed the district court’s denial of plaintiffs’ motion for a preliminary injunction seeking to enjoin, pursuant to the First and Fourteenth Amendments, a California law that prohibits the advertising of any “firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.” California Business and Professions Code §22949.80.

The panel assumed that California’s law regulates only commercial speech and that intermediate scrutiny applies.

Applying intermediate scrutiny, the panel first concluded that because California permits minors under supervision to possess and use firearms for hunting and other lawful activities, Section 22949.80 facially regulates speech that concerns lawful activity and is not misleading. Next, the panel held that section 22949.80 does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors. There was no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Finally, the panel held that section 22949.80 was more extensive than necessary because it swept in truthful ads about lawful use of firearms for adults and minors alike. Because plaintiffs had shown a likelihood of success on the merits and the remaining preliminary injunction factors weighed in plaintiffs’ favor, the panel reversed the district court’s denial of the preliminary injunction and remanded for further proceedings.

A separate concurrence was written by Judge VanDyke. Judge VanDyke agreed with the ruling, but wished to state the ruling should have been made under strict scrutiny. The law sought to use the power of the state to eliminate a viewpoint the government disagreed with. This is not allowed by the First Amendment. From the concurrence:

California has thus singled out a particular message it does not like and prohibited its proliferation. Its intent to stamp out this speech is evident from the record. And it crafted a targeted legislative scheme to get the job done. This kind of effort to stamp out disliked viewpoints deserves the strictest of scrutiny. “A legislature cannot privilege one set of speakers as the good guys, while restraining another set of speakers as the baddies.” Ass’n of Nat. Advertisers, Inc. v. Lungren, 44 F.3d 726, 739 (9th Cir. 1994) (Noonan, J., dissenting).

This sort of attack on freedom of speech is spreading and being promoted all over the United States. The left does not believe in freedom of speech. They believe in stamping out dissent and any viewpoint they disagree with. The First and Second Amendments reinforce and support each other.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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