JURIST Guest Columnist Glenn C. Smith of Western California School of Law in San Diego discusses the current commercial-speech doctrine and California gun control cases. . .
The September 2018 decision of Federal District Judge Troy Nunley in Tracy Rifle and Pistol LLC v. Harris is noteworthy for at least two reasons.
First, the decision invalidated a California law prohibiting firearms retailers from displaying on the exterior of their premises any readily visible “handgun or imitation handgun, or placard advertising the sale or other transfer thereof.” In doing this, Tracy Rifle and Pistol joins a growing list of lawsuits challenging state and local gun-control laws in the aftermath of a pair of Supreme Court decisions expanding the Second Amendment right to “keep and bear Arms.”
Second, Tracy Rifle and Pistol is a textbook illustration of the specialized, and in some ways awkward, place of commercial speech/advertising in the First Amendment pantheon. The case is a reminder of the extensive and subjective policy-making discretion the “intermediate” commercial-speech standards afford to judges.
The Context and Essence of the Tracy Rifle and Pistol Ruling
The case of Tracy Rifle and Pistol arose after inspectors from the California Department of Justice cited three gun-sales businesses for violating California law by having a metal parking-lot sign and a logo shaped like a revolver and exterior-window decals depicting handguns. Wishing to continue these advertising practices, the businesses and their owners filed suit.
In granting summary judgment to the objecting businesses and owners, Judge Nunley recognized that California’s law burdened their commercial-free-speech rights. Applying the four-part constitutional test for commercial speech the Supreme Court articulated in 1980 (as analyzed below), the Judge found that the challenged California law did not sufficiently advance California’s admittedly “substantial” regulatory interests – reducing handgun suicide and handgun crime. Judge Nunley found that the law was “fatally underinclusive” (i.e., too selective and incomplete) and unconstitutionally “overinclusive” (i.e., more extensive than necessary, because California had effective, less-speech-suppressive alternatives).
Another California Gun-Control Decision – with a twist…
As one of the strictest gun-control states, California has generated several high-profile decisions in recent years about the scope and legitimacy of gun control. Controversies have arisen especially since the 2008 decision in District of Columbia v. Heller, which held that the Second Amendment’s “central component” guaranteed a right of self-defense and home protection unmoored to service in a “well-regulated Militia” (as the Amendment’s preface puts it), and the 2010 decision in McDonald v. City of Chicago, which applied Heller’s re-invigorated private-self-defense right to state and local gun-control laws.
As past JURIST postings have noted, two especially high-profile challenges to California laws have split different federal district and appellate judges. These cases led to strenuous protests by Supreme Court Justice Clarence Thomas when his colleagues failed to grant Supreme Court review. The two cases: Peruta v. County of San Diego, which upheld very restrictive standards used by several urban county sheriffs in granting concealed-weapons permits, and Silvester v. Harris, which validated California’s lengthy ten-day waiting period for handgun purchases, even as applied to repeat customers whose backgrounds had already been checked.
Tracy Rifle and Pistol as Illustration: An Awkwardly Positioned and Value-Laden Doctrine
Of course, Tracy Rifle and Pistol is not technically a Second-Amendment challenge; it relies on the Amendment that got “first billing” in the Bill of Rights. Still, the recent decision is an example of how, in the post-Heller/McDonald era, other relevant constitutional provisions can be pressed into service to protect an activity (handgun purchases) that Judge Nunley described as “not only…lawful, [but also] constitutionally protected.”
“Commercial speech” occupies a strange rung on the ladder of constitutional free-speech protections. Until the 1970’s, advertising (like obscenity and defamation) was speech without any First-Amendment protection. In the shadow of the consumer-rights movement, the Court in the 1970’s laid the foundation for substantial constitutional protection of speech that “proposes a commercial transaction.”
The 1980 decision in Central Hudson Gas & Elec. Corp. v Pub. Serv. Comm’n of N.Y. elaborated a four-part test. The Central Hudson test provides that a governmental unit can only regulate (1) “non-misleading” advertising of a “lawful” product if (2) government has “substantial” interests that are (3) “directly” and “materially” advanced by the regulation, which (4) must be “no more extensive than necessary” to further the government’s interests.
Notably, this potentially potent protection is not intended to be as robust as the “strict scrutiny” modern Free-Speech doctrines afford to other (non-commercial) content-based regulation. For example, if California sought to regulate political speech about gun-control, a scholarly paper about the causes of gun violence, or a performance-art piece about school shootings, government would need a stronger interest (“compelling”) and the fit between the government’s goals and the regulation would be more tightly scrutinized (under a “least restrictive means” test).
Which leads directly to the point that, compared to the analysis brought to other content-based speech regulation (in which strict scrutiny typically dooms the regulation), scrutiny of regulation based on commercial content is more uncertain; it leaves substantial running room for judicial discretion and varying value judgements. Tracy Rifle and Pistol provides a perfect example.
Once he drew the obvious conclusion that handgun sales were lawful and that using gun shapes and truthful placards to advertise was not “misleading” (Central Hudson prong 1), Judge Nunley did what most evaluators do when assessing the substantiality of government interests (prong 2): he analyzed the anti-suicide and anti-gun-violence interests in the abstract and in one short paragraph credited them as obviously “substantial.”
Where the rubber met the road, as often happens in commercial-speech cases, is with the remaining two Central Hudson criteria. Reasonable jurists can differ about whether a regulation advances government’s interests (prong 3) “directly” — as opposed to peripherally — and “materially” — as opposed to insignificantly or not at all. And the heart of the 4th Central Hudson prong turns on whether government has other options that would actually advance its interests with less Free-Speech damage. This requires sophisticated comparison of the pros and cons of government’s choice of regulatory means versus the merits and demerits of existing laws or other potentially viable approaches.
To provide just two of many examples from Tracy Rifle and Pistol:
First, Direct/Material advancement: In connecting its regulation of gun-dealer advertising to its concern about gun-related suicide and violence, California relied on two expert witnesses to support its arguments that ad restrictions “inhibit [gun] purchases by people with impulsive personality traits” and therefore reduce the ready gun access that would enable these people to commit suicide or gun violence. Among his reasons for pooh-poohing the strength of this causal argument, Judge Nunley reasoned that California’s existing ten-day waiting period for background checks would prevent immediately impulsive gun use and that the link between current impulsive acquisition of a gun and its use “at some unspecified future time likely years later” was just too indirect. Judge Nunley also strongly applied to the subset of the population with impulsivity issues a general commercial-speech principle — that it is unacceptably paternalistic to ban particular commercial content based on the “fear that people would make bad decisions” if given the information.
Another judge might well have weighed the factors differently, more charitably crediting California’s chain of reasoning. Another judge might have found paternalism more appropriate for an especially vulnerable subset of Californians or discounted the extent of information present in a pistol-shaped sign or “Guns for Sale” placard.
Secondly, more Extensive than Necessary/Other Options: On prong 4 Judge Nunley concluded that California’s existing ten-day waiting period for acquiring firearms, its limit on handgun purchases to one gun in any thirty-day period, and its requirement that gun purchasers complete firearm-safety courses combine to “act directly to deter the potential harmful consequences of handgun purchases.” So, the challenged law was unnecessary. Judge Nunley also posited that California could instead “run an educational campaign focused on the dangers of handguns or the consequences of impulsive decision making.”
Again, another judge might assess the alternatives as less promising or California’s approach as more worthy of credence.
Judge Nunley’s handling of these and other commercial-speech issues is more than plausible; in my view, his analysis is the sounder one. Here I’m making a different point – that reasonable judicial minds can differ more in this area than in many others.
After all, the bases on which judges might differ under Central Hudson are classic matters of non-judicial judgment more typically associated with elected and appointed policy-makers. In our constitutional democracy, legislators and administrative rule-makers typically assess the relative costs and benefits and efficacy of different proposed courses of action.
The current commercial-speech doctrine might obligate judges to act outside of their judicial comfort zone.
Professor Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego. He is the principal co-author of Constitutional Law for Dummies [John Wiley & Sons, Inc. 2012]. His monthly “Constitutional Context” audio podcasts are hosted by SDSU’s Osher Lifelong Learning Institute (and available by app from I-Tunes and other major service providers).
Suggested citation: Glenn C. Smith, Gunning for Commercial Speech, JURIST – Academic Commentary, Oct. 9, 2018, http://jurist.org/commentary/2018/10/glenn-smith-gunning-for-commercial-speech.php
This article was prepared for publication by Brittney Zeller, an Associate Editor for JURIST Commentary. Please direct any questions or comments to her at email@example.com
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