• by Wendy Davis , Staff Writer @wendyndavis, September 14, 2023

This week, a federal appellate panel unanimously blocked a California law banning gun ads aimed at minors, ruling that the measure likely ran afoul of the First Amendment.

While the decision doesn't directly deal with social media, the judges' sweeping statements about the First Amendment could give a boost to the tech industry, New York Times Company and other opponents of a California law that regulates how tech platforms display content to teens. 

The new decision deals with a 2022 law that prohibits ads for gun-related products “in a manner that is designed, intended, or reasonably appears to be attractive to minors.”

The magazine Junior Shooters (which focuses on weapons-related activities and products) and others, including the gun rights group Second Amendment Foundation, challenged the law in court.

A trial judge upheld the measure, but a three-judge panel of the 9th Circuit Court of Appeals blocked the law on the grounds that it appears to wrongly restrict truthful speech.

“Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it 'materially' and 'directly' advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar,” Circuit Judge Kenneth Lee wrote Wednesday in an opinion joined by Judge N. Randy Smith. Judge Lawrence VanDyke concurred in a separate opinion.

California officials unsuccessfully argued to the 9th Circuit that the law advanced a legitimate governmental interest in preventing minors from purchasing guns, and protecting people from gun violence.

The judges agreed the state had a “substantial interest” in those goals, but said there was no evidence the law would accomplish them.

“In the end, California spins a web of speculation -- not facts or evidence -- to claim that its restriction on speech will significantly curb unlawful firearm use and gun violence among minors,” Lee wrote. “The First Amendment cannot be so easily trampled through inferences and innuendo.”

The decision comes shortly before a different California restriction on speech -- the Age-Appropriate Design Code -- is due to take effect. Among other provisions, that law requires online companies likely to be accessed by users under 18 to prioritize their "best interests" and "well-being."

The tech industry organization NetChoice is currently seeking to block the measure, arguing that the mandate to prioritize young users' well-being violates the First Amendment.

"The 'harm' the law seeks to address -- that content might damage someone’s 'well-being' -- is a function of human communication itself," NetChoice wrote in recent court papers.

That organization added that terms like "best interests" and "well-being" are vague and subjective.

"A child whose relative died of COVID-19 may find news about the pandemic profoundly upsetting and be 'potentially harmed,' whereas another child would not," NetChoice argued earlier this year.

The New York Times Company and Student Press Law Center back NetChoice's challenge, arguing in a friend-of-the-court brief that the Age-Appropriate Design Code will unconstitutionally limit teens' ability to express themselves and to access lawful information, including news.

On Thursday, NetChoice flagged the new 9th Circuit case to U.S. District Court Judge Beth Labson Freeman in San Jose, who is expected to soon decide whether to block enforcement of the Age-Appropriate Design Code.