California has just adopted an anti-gun law that violates the First Amendment. The law, AB 2571, prohibits firearm industry businesses, including gun magazine publishers, “from advertising or marketing any firearm-related product, as defined, in a manner that is designed, intended, or reasonably appears to be attractive to minors.”
Of course, ads that are attractive to adults also are typically attractive to minors, too. So this law bans many ads that are attractive to adults as well. That raises constitutional problems because advertising is protected by the First Amendment — even ads that do nothing more than promote a commercial transaction are typically protected by the First Amendment.
Moreover, the advertising of lawful products, such as cigarettes, generally can’t be banned just because minors are restricted from using them. For example, the Supreme Court struck down heavy restrictions on tobacco advertising in Lorillard Tobacco Co. v. Reilly (2001), even though cigarettes kill more Americans annually than guns, and minors can’t legally obtain cigarettes.
Back in April, Eugene Volokh, a law professor at the University of California at Los Angeles, explained why this California law is
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.
The use of “cartoon characters to promote firearm-related products” is a factor that the law deems to weigh in favor of illegality. The Truth About Guns laments that “California’s new law would impose a $25,000 minimum penalty for sponsoring any adult-supervised youth shooting event. That includes the state’s Department of Fish and Wildlife’s hunter education courses. Boy Scout target shooting merit badges could even be included.”
In trumpeting passage of this law, California’s Governor Gavin Newsom foolishly “held a .22-caliber youth model rifle and called it a ‘weapon of war’ while pointing it directly at the cameraman. ‘This is an AR-15. A weapon of war. The gun industry is openly marketing these to KIDS. With cartoons and mini JR-15s.'”