California Gun, Web Safety Laws Colliding With First Amendment

California efforts to avoid the reach of First Amendment protections failed twice in less than a week as a pair of state laws aimed at protecting children from gun advertisers and internet predators were blocked by separate federal court rulings.

“California is a good example for enacting good laws. What’s happening in the court is a different story,” said Gaia Bernstein, the Seton Hall University School of Law technology, privacy and policy professor and co-director of the Institute for Privacy Protection.

First, on Sept. 13, the San Francisco-based US Court of Appeals for the Ninth Circuit barred enforcement of the state’s ban on any firearm advertisement that “reasonably appears attractive to minors,” finding it was likely to impose an unconstitutional burden on free speech.

Then, just five days later, US District Judge Beth Labson Freeman in San Jose blocked the state’s first-in-the-nation law requiring children be protected from all online products and services they’re likely to access, handing a preliminary win to the tech industry.

“It’s part of a bigger trend and it’s been going on for a while—corporations using the First Amendment as a tool to reach results that I don’t think have much to do with free speech,” said Bernstein, pointing to tobacco companies using the First Amendment to sue over labels carrying health warnings.

“You see laws, you see litigation, you see corporations fighting with First Amendment as a major tool, and it’s happening all over again,” she said.

Good Intentions, Poor Drafting

Freeman’s ruling preliminarily, and immediately enjoined enforcement of the California Age-Appropriate Design Code Act.

The law requires platforms such as TikTok, YouTube, Instagram, and online video gaming to boost privacy and safety protections for teens and children, including limiting the amount of information collected.

The tech trade group NetChoice, whose members include Meta, Google, and TikTok parent ByteDance, sued to block the law that was scheduled to go into effect July 2024.

“The Court is keenly aware of the myriad harms that may befall children on the internet, and it does not seek to undermine the government’s efforts,” Freeman said, acknowledging California’s stated concerns. Still, she concluded that NetChoice was likely to prove the state’s law abridged commercial speech and was therefore invalid.

Attorney General Rob Bonta’s office said in an emailed statement that the Democratic AG was “disappointed by the decision and will respond in court as appropriate.”

“A growing number of court decisions around the country are confirming what we already know: Regulating the Internet inherently regulates speech, and good intentions cannot save broad and poorly drafted laws,” said Bob Corn-Revere at the Foundation for Individual Rights and Expression that was co-counsel with NetChoice.

Paul Taske, Policy Counsel at NetChoice’s Litigation Center, said the group is “hopeful that these decisions will signal to others considering similar measures that they should focus on education and working with the tech industry to protect minors, not considering broad and unconstitutional regulations with no clear ability to keep minors safe online.”

In addition to California, at least 17 other states have either passed or proposed legislation to boost privacy protections for children, according to an article published by Bryan Cave Leighton Paisner LLP on its website.

Some of those laws too are foundering.

“Legislatures around the country are passing misguided and censorial laws under the pretextual justification that the laws protect children online,” said Eric Goldman, Santa Clara University School of Law associate dean for research and co-director of the High-Tech Law Institute.

Goldman submitted a friend of the court brief to Labson arguing that requiring additional age verification steps creates onerous barriers to access.

“At their core, the laws require online services to deploy age authentication so that the services can segregate children from adults, and mandatory online age authentication has significant and unavoidable privacy and security implications that harm both children and adults alike,” he said.

Missing the Mark

It’s being charitable to say that the laws are well intentioned, said Chuck Michel, whose Michel & Associates PC law firm won the Ninth Circuit’s gun ads ruling, and is litigating in several federal courts to block gun legislation.

“This is sort of cultural engineering,” Michel said Tuesday. California Gov. Gavin Newsom “has declared war on gun culture. So, you’re trying to keep children from being exposed to messages that aren’t harmful other than politically damaging.

“What’s harmful is in the eyes of the beholder,” Michel said.

The law enacted as Assembly Bill 2571 was partly inspired by a child-size version of the AR-15.

It prohibits a “firearm industry member” from advertising, marketing, or arranging for placement of an advertising or marketing communication offering or promoting any firearm-related product “in a manner that is designed, intended, or reasonably appears to be attractive to minors.”

The Ninth Circuit agreed with Michel and firearms advocates that California’s law to limit marketing of gun information to children violated the First Amendment.

“California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment ‘significantly’ decreases unlawful gun use among minors.” Judge Kenneth K. Lee wrote for the panel. “The First Amendment demands more than good intentions and wishful thinking to warrant the government’s muzzling of speech.”

California argued AB 2571 directly advances the state’s “compelling interest in protecting children from gun violence and is well tailored to achieving that interest.”

The Ninth Circuit, however, held the state failed to show the law was sufficiently tailored, and reversed the trial court’s denial of injunctive relief.

“The First Amendment is now protecting the Second,” said Michel. “It’s ironic but that’s true -- the Second Amendment message is being protected by the First” Amendment.

California Governor Gavin Newsom (D), in a press statement, called the appeals court ruling, “pure insanity” and said his office was working with Bonta’s to “explore options” to challenge it.

Everytown for Gun Safety advocates for gun control measures. Michael Bloomberg is the majority owner of Bloomberg Law’s parent company and serves as a member of Everytown’s advisory board.

The cases areNetChoice, LLC v. Bonta, N.D. Cal., No. 5:22-cv-08861, 9/18/23 and Junior Sports Magazines, Inc. v. Bonta, 9th Cir. App., No. 22-56090, 9/13/23.