A WLF Circulating Opinion digested from a concurring opinion by The Honorable Lawrence VanDyke, Circuit Judge, U.S. Court of Appeals for the Ninth Circuit. The full text of the decision, issued by the Ninth Circuit on September 13, 2023, is available here.

Ed. note: WLF’s “Circulating Opinion” spotlights exceptional judicial writing on compelling, timely topics. Each chosen opinion speaks for itself. No assessment, analysis, or evaluation is needed. WLF digests the chosen opinions to focus in more effectively on the issue or issues of interest.

Judge VanDyke had no role in WLF’s selecting or editing this opinion for our Circulating Opinion feature.

Opinion Topic: Laws restricting commercial speech that discriminate against a speaker’s viewpoint merit strict First Amendment scrutiny.

Introduction to the Opinion: In a unanimous opinion authored by Judge Lee, a Ninth Circuit panel struck down a California law that prohibits advertising firearm-related products “in a manner that is designed, intended, or reasonably appears to be attractive to minors.” The court scrutinized the law under the Central Hudson test for commercial speech, concluding that the state failed to prove that the law would directly and materially advance the state’s interest. It also held that the law was far more extensive than necessary to achieve its ends.

Judge VanDyke wrote separately to emphasize that the state’s law discriminated against certain speakers’ viewpoints. The opinion succinctly and convincingly reasons that, although the Supreme Court has never clarified the issue, viewpoint discrimination targeted at commercial speech merits the same strict scrutiny that other speech receives. Judge VanDyke urges the Ninth Circuit, in the appropriate case, to clarify that laws that “clothe their disapprobation of certain viewpoints in restrictions of commercial speech” must survive strict scrutiny.

VANDYKE, Circuit Judge, concurring:

California wants to legislate views about firearms. The record for recently enacted California Assembly Bill 2751 (AB 2751) indicates a legislative concern that marketing firearms to minors would “seek[ ] to attract future legal gun owners,” and that that’s a negative thing. No doubt at least some of California’s citizens share that view. *** Firearms are controversial products, and don’t cease to be so when used by minors. But as the majority opinion explains well, there are a variety of ways a minor can lawfully use firearms in California. And the State of California may not attempt to reduce the demand for lawful conduct by suppressing speech favoring that conduct while permitting speech in opposition. That is textbook viewpoint discrimination.

That is precisely what California did in Assembly Bill 2751. Under this law, those who want to discourage minors from lawfully using firearms (such as for hunting or shooting competitions) are free to communicate their messages. Certain speakers (“firearm industry members”) who want to promote the sale of firearms to minors, however, are silenced. I agree with the majority opinion that, even assuming intermediate scrutiny applies, California’s nascent speech code cannot withstand it. I write separately to emphasize that laws like AB 2751, which attempt to use the coercive power of the state to eliminate a viewpoint from public discourse, deserve strict scrutiny. Our circuit’s precedent is ambiguous about whether viewpoint-discriminatory laws that regulate commercial speech are subject to strict scrutiny. In the appropriate case, we should make clear they are.

I. The California Legislature and Governor Targeted Speech that Encourages Lawful Conduct They Dislike.

In June 2022, California enacted Assembly Bill 2751. AB 2751 restricts speech on the basis of viewpoint. “If a law is facially neutral, we will not look beyond its text to investigate a possible viewpoint-discriminatory motive.” Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 899 (9th Cir. 2018). But AB 2751 is not “facially neutral” between viewpoints on the topic of minors using firearms. Id. It prohibits advertisements about the use of firearms by minors that make a “firearm-related product … appear[ ] to be attractive to minors,” while allowing those that don’t. Cal. Bus. & Prof. Code § 22949.80(a)(1). *** Because the law discriminates on its face, “we may peel back the legislative text and consider legislative history and other extrinsic evidence to probe the legislature’s true intent.” Interpipe Contracting, Inc., 898 F.3d at 899.

When the text is peeled back, the legislative record indicates an intention that the law will stop the message that minors should lawfully use firearms, and a hope that the law will prevent minors from eventually becoming adults who have a favorable view of gun ownership and use. The very beginning of the legislative analysis of the bill identifies the messages that California attempted to stop in passing AB 2571: messages that “entice children to be interested in possessing and using firearms.” One of the legislators who authored AB 2751 lamented in the press release announcing the bill that “[g]un manufacturers view children as their next generation of advocates.” Revealing even more animus, the bill’s author characterized firearms designed for minors as “disturbing products.” ***

Elsewhere in the legislative record, it is indicated that the bill “[was] prompted by the incidence of marketing and advertising of firearm-related products to children,” advertising that “arguably [sought] to attract future legal gun owners.” ***

The governor of California, who sponsored the bill, shared the legislature’s open animus against the messages targeted by AB 2751. The announcement that Governor Newsom signed the bill stated that the “legislation … directly targets the gun lobby and [firearm] manufacturers.” ***

The executive branch and the bill’s proponents in the legislature did not work in vain to extinguish a viewpoint from the public discussion on firearms. AB 2751 effectively removes one viewpoint from the public conversation over the proper role of firearms in our society, while leaving the opposite viewpoint free to participate. Under AB 2751, those opposed to minors using firearms for competitions, hunting, and other lawful uses may advocate against such usage. Those who “advocat[e] for the purchase, use, or ownership of firearm-related products,” however, may not promote firearm-related products to minors, even though the minors can use these products for lawful activities. See, e.g., Cal. Bus. & Prof. Code § 22949.80(a)(1), (c)(4)(B). ***

California has thus singled out a particular message it does not like and prohibited its proliferation. Its intent to stamp out this speech is evident from the record. And it crafted a targeted legislative scheme to get the job done. This kind of effort to stamp out disliked viewpoints deserves the strictest of scrutiny. ***

II. California’s Undisguised Viewpoint-Discrimination Should Be Subjected to Strict Scrutiny.

The First Amendment, almost universally, “forbids” laws that restrict speech on the basis of viewpoint. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). The Supreme Court has carved out one exemption allowing the government to discriminate between viewpoints: when the government is itself speaking. See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001). The Court has not been so explicit about carving out any restriction from the First Amendment’s blanket disapprobation of viewpoint discrimination for when the speech is commercial. Given the strong default rule that viewpoint-discriminatory laws are simply impermissible under the First Amendment, and the lack of an express carveout for commercial speech restrictions, there is no good reason a law like AB 2751 should be subjected to anything less than strict scrutiny. Admittedly, our own circuit’s precedent leaves room to argue for a lower level of scrutiny. But as explained below, our precedent doesn’t compel a lower level of scrutiny either. And it would be good for us to clarify in the right case that commercial speech isn’t an exception to the almost-universal rule that governmental attempts to police viewpoints are subjected to the highest form of judicial skepticism.

Start with first principles. Government action that regulates speech on the basis of that speech’s content is inherently suspect and “presumptively unconstitutional” under the First Amendment. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). A content-based restriction regulates the “public discussion of an entire topic.” Id. at 156, 135 S.Ct. 2218 (citation omitted). If California had, for example, prohibited any advertisements related to the use of firearms by minors, then arguably it would have been engaging “only” in content-based discrimination.

But courts have always viewed attempts to regulate viewpoints with even greater suspicion than regulating content. Viewpoint discrimination is a type of content discrimination, but a “more blatant” type, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995), which is why the Supreme Court has described the First Amendment as almost universally “forbid[ding] the government [from] regulat[ing] speech in ways that favor some viewpoints or ideas at the expense of others,” Members of City Council, 466 U.S. at 804. ***

Indeed, the reason for this “pocket of absolutism” in the Court’s First Amendment jurisprudence, where it almost never permits viewpoint-discriminatory speech restrictions, is not hard to comprehend. “The First Amendment creates an open marketplace in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 309 (2012) (cleaned up). When the government attempts to stamp out the presentation of one viewpoint, no matter how much the government may dislike it, it short-circuits the public’s ability to reason together. ***

Putting first principles to the side, the Supreme Court has also stated that “the Constitution … accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 563 (1980). California argues that this means that AB 2751 need withstand only Central Hudson’s intermediate scrutiny. ***

The Supreme Court has never invoked Central Hudson to apply intermediate scrutiny to a law that discriminates between viewpoints, even in the commercial context. *** The closest the Supreme Court has come to addressing whether commercial speech restrictions enjoy an exemption from the default rule of strict scrutiny for viewpoint discrimination was in Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011). The Court there described the law’s “practical operation” as “go[ing] beyond mere content discrimination[ ] to actual viewpoint discrimination.” Id. at 565. The Court thus concluded that “heightened judicial scrutiny [was] warranted.” Id. Although it did not there define “heightened judicial scrutiny,” the Court cited two cases, one of which discussed intermediate scrutiny and one of which discussed strict scrutiny. See id. (citing Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 (1993) (discussing intermediate scrutiny), and Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994) (discussing strict scrutiny)).

The Supreme Court noted that it could apply either “a special commercial speech inquiry,” i.e., something like Central Hudson’s intermediate scrutiny, “or a stricter form of judicial scrutiny.” Id. at 571. The Court then assumed without deciding that something like Central Hudson’s intermediate scrutiny applied because “the outcome [was] the same” regardless of which scrutiny the Court applied. Id. But if the Court in Sorrell had definitely concluded that commercial speech restrictions receive less than strict scrutiny even when they target certain viewpoints, it would have been odd for it to merely assume that something like intermediate scrutiny applied. Sorrell thus suggests that the Supreme Court has never carved out commercial speech from the default rule that viewpoint-discriminatory speech restrictions invoke strict scrutiny. It certainly doesn’t compel the opposite conclusion.

The fact that the Supreme Court has never expressly exempted commercial speech from the standard application of strict scrutiny for viewpoint-discriminatory laws is especially probative given that the Court has exempted government speech, and done so expressly. ***

Indeed, it is not even clear that our own circuit’s precedent requires we subject a law like AB 2751 to anything less than strict scrutiny. California cites Retail Digital Network, LLC v. Prieto to support its contention that AB 2751, even if content-based, should receive only intermediate scrutiny. See 861 F.3d 839, 846 (9th Cir. 2017) (en banc). That is because our court there held that Sorrell did not change the applicability of Central Hudson’s intermediate scrutiny test to content-based restrictions on commercial speech. Id. at 849. Then-Chief Judge S.R. Thomas wrote a persuasive dissent in that case, explaining how our court misread Sorrell. Id. at 851. I agree with him that Sorrell “requires ‘heightened judicial scrutiny,’ rather than traditional intermediate scrutiny under Central Hudson.” Id.

But putting aside whether Retail Digital Network was correctly decided, it is not obvious that the analysis in Retail Digital Network even controls laws that, like here, discriminate on the basis of viewpoint. Our court in Retail Digital Network never discussed the relevance of the test applied in Sorrell to viewpoint-based restrictions on commercial speech. The court instead reasoned that Sorrell did not change the applicability of Central Hudson to content-based restrictions on speech. Id. at 848–49. While Retail Digital Network does not mention viewpoint-discrimination, one could argue that, in describing the scrutiny applicable to restrictions of commercial speech on the basis of content, our court also implicitly set the level of scrutiny applicable to restrictions of commercial speech on the basis of viewpoint—because the latter is a subset of the former. See Rosenberger, 515 U.S. at 829. But the Supreme Court has also been clear in regularly distinguishing “mere” content-based discrimination from the even more troubling viewpoint-based discrimination. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (“In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.”). I have my doubts that we should read a level of scrutiny applicable to less concerning laws (content-based restrictions), as automatically applying to more concerning laws (viewpoint-based restrictions) — especially given that the First Amendment all but flatly prohibits those more concerning laws.

In short, there are good reasons to believe the First Amendment subjects viewpoint-discriminatory commercial speech restrictions to strict scrutiny. I see a lot in the Supreme Court’s precedent supporting that conclusion, and nothing in our precedent preventing it. But there is no need to wrestle these questions to the ground in this case. In the appropriate case where it makes a difference, we should look at that question closely—and I would be surprised and disappointed if the result was that we failed to subject to strict scrutiny a law that targets speech because of its viewpoint.

***

The Court long ago held that commercial speech deserves less protection under the First Amendment than other speech. See Cent. Hudson Gas & Elec. Corp., 447 U.S. at 563. Many have criticized the coherence and foundation of that position. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 520 & n.2 (1996) (Thomas, J., concurring in part and concurring in the judgment) (collecting cases). This case illustrates one aspect of the damage done to our republic by the commercial speech doctrine. It has become an attractive nuisance to reactive legislatures that reflexively attempt to target ideas the legislature finds disagreeable. AB 2751 is a particularly egregious example. The summary of AB 2751 emphasizes a belief that, just because a law addresses commercial speech, the government enjoys a carveout from the typical scrutiny applied to a law that directly targets ideas and messages for suppression. In other words, the record suggests that California believed it could rely on the courts’ lessened protection for “commercial speech” to get away with activity—suppressing ideas and messages the government merely finds disagreeable—that strikes right at the heart of the First Amendment.

But even Central Hudson recognized that we should “review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy.” 447 U.S. at 566 n.9. What might justify a truly neutral regulation cannot “save a regulation that is in reality a facade for viewpoint-based discrimination.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985). As the majority opinion correctly concludes, California here did such a bad job that its attack on a disfavored viewpoint cannot even withstand intermediate scrutiny. But we should be cognizant of the risks that the commercial speech doctrine engenders from governments eager to impose their vision of rightthink on the people. And in the appropriate case, we should carefully consider whether our precedent and the Supreme Court’s precedent are truly open to the manipulation of free speech by governments that clothe their disapprobation of certain viewpoints in restrictions on commercial speech.