There is an interesting first amendment case developing in California where gun store owners are challenging a California Penal Code section 26820, a law from 1923 that bans gun stores from putting up signs advertising the sale of handguns. Shotguns can be advertised but not handguns. Four dealers are claiming that their freedom of speech is being curtailed on an arbitrary basis. They have a point.
The lawsuit in the Eastern District of California in Sacramento names California Attorney General Kamala Harris and Stephen Lindley, who heads the state Department of Justice’s Bureau of Firearms.
As shown by Citizens United, there has been a shift in favor of speech rights of corporations though there remain questions over the difference between commercial and noncommercial speech. Other states like Pennsylvania, Texas and Washington, D.C. have such laws which reportedly are rarely enforced.
Standing does not appear to be a serious question. Tracy Rifle and Pistol, a gun store and firing range in San Joaquin County, was recently cited for having pictures of three handguns in window signs that could be seen from outside the store.
The bar on gun advertising generally is difficult square with the first amendment. The isolation of handguns add a layer of arbitrariness. This is magnified by the fact that the signs are advertising products at the heart of an individual right to own handguns.
The challengers rely on cases like Sorrell that state “the ‘fear that people would make bad decisions if given truthful information’ cannot justify content-based burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. ___, 131 S. Ct. 2653, 2670-71 (2011) (“The choice ‘between the dangers of suppressing information, and the dangers of its misuse if it is freely available’ is one that ‘the First Amendment makes for us.’”)(quoting Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)).
In my view, the challengers should win, which could lead to challenges in these other jurisdictions.