I enjoy disparate interests. I teach Second Amendment law, and teach and write a treatise on advertising law. I was surprised that two of my legal interests coincided when Illinois House Bill 218 was signed into law by the Illinois Gov, J.B. Pritzker.
H.B. 218 is an omnibus gun safety law, and one of its prohibitions is the advertising of a gun in a way that may support, recommend or encourage a person under 18 to unlawfully purchase, possess or use a firearm in Illinois. In addition to the vagueness of this criminal statute, it has First Amendment problems. Maybe Second Amendment issues, too.
In 1956 Rhode Island enacted laws prohibiting the advertising of retail prices of alcoholic beverages. The asserted government interest for the ad ban was the promotion of temperance and the control of alcoholic beverages traffic. The case made it to the U.S. Supreme Court, where the plaintiff, a retailer, alleged his First Amendment rights were violated. The court agreed. The case was 44 Liquormart v. Rhode Island (1996).In this decision, the court first set the table with an observation that advertising is an important part of the American culture, reaching back to the country’s founding, and next by describing how advertising provides a substantial benefit to the consumers who rely on this “commercial speech” for vital information. 44 Liquormart was not the court’s first foray into the regulation of commercial speech.
In Bigelow v. Virginia (1975) the editor of the Virginia Weekly was criminally charged for running an ad for an organization that referred women to clinics and hospitals for abortion; the ad violated Virginia law. The Supreme Court held it was error to assume commercial speech is without First Amendment protection. That holding was expanded the next year in Va. Pharmacy Bd. v. Va. Consumer Council, where the court observed, “Advertising, however tasteless and excessive it sometimes may seem is nonetheless dissemination of information as to who is producing and selling what product, for what reason and at what price.’’
The court’s seminal 1980 Central Hudson Gas & Electric Corp. v. Public Services Comm’n of N.Y. ruling held that while there might be a palpable correlation between advertising of appliances and consumption of electricity, and the “state interest in conservation of electricity [during the energy shortage of 1974] was substantial,” the prohibition on advertising appliances was invalid because the state did not establish that a more limited regulation of speech would have not met the state’s interest. A prohibition on commercial speech must be narrowly drawn.
Although proponents will argue the law’s intent is to curb unlawful activities, the Illinois effort is beset with all these historic problems, and one more. The additional challenge may come from Bruen, a sea-change Second Amendment case from 2022 that tossed out the balancing, state interest test, whether it be strict or intermediate scrutiny, in favor of a test called the “nation’s historic tradition,” which requires, in a Second Amendment case, the regulator show a similar or analogous regulation was in existence at or about 1791. The court may apply this test on top of its earlier holdings to test the law because the law restricts lawful information about guns by restricting speech.
When challenged, the citizens’ safety needs versus the rights of advertisers and the rights of the legal intended audience of the ads will be at odds. Illinois sees a real need to protect its citizens against a plague of gun violence but to prevail, Illinois under pre-Bruen principles will need to show the restricted speech was deceptive or related to unlawful activity, and that it is effective to achieve the government’s interest while being no more extensive than necessary.
And then there is the vagueness of the law. Bruen may complicate this further. Gun possession by underaged people may be illegal, but the ads will reach a broad audience, especially those 18 and over. Other states are watching.
James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches trademark and unfair competition law at University of Baltimore Law School.
This article was originally published in The Daily Record.