80 F.4th 1109
9th Cir.2023Background
- California enacted AB 2571 (later amended by AB 160), codified at Cal. Bus. & Prof. Code § 22949.80, banning firearm-industry advertising that is “designed, intended, or reasonably appears to be attractive to minors.”
- The statute targets paid advertising (defined as communications intended to encourage commercial transactions), contains enumerated factors for the “attractive to minors” test, and exempts promotions of safety programs, competitions, hunting activities, and organizational membership; enforcement includes civil penalties and injunctive relief.
- California law concurrently permits minors, with parental consent or supervision, to possess and use firearms for lawful recreational activities (hunting, competitive shooting, etc.).
- Junior Sports Magazines (publisher of Junior Shooters) stopped distributing its magazine in California and sought a preliminary injunction, arguing § 22949.80 violates the First and Fourteenth Amendments.
- The district court denied the injunction applying Central Hudson intermediate scrutiny; the Ninth Circuit reversed, finding Junior Sports Magazines likely to succeed on the First Amendment claim because the statute regulates lawful, non-misleading speech, lacks evidentiary support showing it directly and materially advances California’s interests, and is substantially overbroad.
- The court remanded with instructions to enter preliminary relief; a concurrence emphasized that viewpoint-discriminatory commercial-speech restrictions should receive strict scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Level of scrutiny — content/viewpoint-based commercial speech? | Statute targets protected truthful commercial speech; intermediate or heightened scrutiny required. | Law regulates commercial speech; Central Hudson intermediate scrutiny applies. | Court assumed commercial-speech framework but found result the same under either standard; likely unconstitutional. |
| 2. Is regulated speech misleading or about unlawful activity? | Ads target lawful uses (e.g., youth hunting); not misleading and thus protected. | Ads can encourage minors to obtain/use guns unlawfully; regulation is aimed at preventing that. | Speech is not misleading and concerns lawful activity (minors may lawfully use guns under supervision). |
| 3. Does § 22949.80 directly and materially advance substantial government interests? | State provided no evidence linking truthful advertising to unlawful minor gun possession or violence; speculation insufficient. | Advertising increases demand and therefore may indirectly increase unlawful possession and violence; common-sense inferences suffice. | State failed its evidentiary burden; law does not directly and materially advance the asserted interests. |
| 4. Is the statute narrowly tailored / more extensive than necessary? | Law is content-targeted but sufficiently limited by factors and applies to advertising attractive to minors. | The totality test and enumerated factors constrain scope; law is appropriately tailored. | Statute is overbroad; it sweeps in truthful ads to adults and lawful speech (e.g., safer youth-oriented rifles), so it is more extensive than necessary. |
Key Cases Cited
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) (commercial-speech intermediate-scrutiny test)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government must provide evidentiary support that regulation directly advances interest)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (plurality) (state cannot rely on a chain of speculative inferences; need evidentiary support)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny where law operates as viewpoint discrimination or beyond mere content regulation)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (overbroad advertising restrictions invalid under commercial-speech doctrine)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (preliminary injunction standards)
- Greater New Orleans Broadcasting Ass'n v. United States, 527 U.S. 173 (1999) (criticizing reliance on attenuated chains of inference to justify speech bans)
- Retail Digital Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017) (en banc) (Ninth Circuit discussion of Sorrell and Central Hudson in commercial-speech context)