104 F.4th 108
9th Cir.2024Background
- B&L Productions, Inc. operates gun shows in California and challenged state statutes that ban the sale of firearms and ammunition on state-owned property, specifically fairgrounds.
- Initial bans at specific venues like Del Mar and Orange County Fairgrounds led to lawsuits claiming violations of First, Second, and Fourteenth Amendment rights.
- In one case (Del Mar Fairgrounds), the district court dismissed B&L’s claims; in another (Orange County/All state property), the court granted a preliminary injunction against the ban.
- The statutes in question did not prohibit offers to sell firearms or related speech, but rather prohibited finalizing contracts for firearm or ammunition sales on state property.
- The consolidated appeal addressed whether these statutes violate First Amendment free speech rights or Second Amendment rights to keep and bear arms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment – Restriction on Pro-Gun Speech | Ban targets gun shows, which are vehicles for pro-gun speech | Law only restricts nonexpressive conduct (contracts) | No First Amendment violation; not expressive |
| First Amendment – Commercial Speech | Contracting for gun sales is protected commercial speech | Contracting is nonexpressive conduct, not speech | Banning contract acceptance not protected speech |
| First Amendment – Indirect Effect on Speech | Bans make gun shows economically unviable, chilling pro-gun speech | Statutes do not directly or inevitably restrict speech | Economic effects alone do not implicate 1A |
| Second Amendment – Right to Acquire Firearms | Ban meaningfully constrains access to firearms | No meaningful constraint; same firearms available elsewhere | No Second Amendment violation |
Key Cases Cited
- Arcara v. Cloud Books, Inc., 478 U.S. 697 (regulation of nonexpressive conduct not subject to First Amendment scrutiny)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (distinction between restrictions on expression and nonexpressive conduct)
- District of Columbia v. Heller, 554 U.S. 570 (scope and core of Second Amendment rights)
- New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (test for Second Amendment protection of conduct)
- Teixeira v. County of Alameda, 873 F.3d 670 (ancillary Second Amendment rights and the right to sell/acquire firearms)
- HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (business transactions as nonexpressive conduct)
- International Franchise Ass’n v. City of Seattle, 803 F.3d 389 (expressive vs. nonexpressive conduct for First Amendment)