By Larry Keane
There’s a renewed effort by gun control to deny Second Amendment rights to gun owners. They’re going after the First Amendment.
Gun control groups squealed with excitement over the decision by insurers of the now-defunct Remington Outdoor Company (ROC) to settle the lawsuit brought by some of the families of the Sandy Hook tragedy. That settlement, which contained no admission of liability, paid out $73 million and released the marketing materials that were produced by ROC during discovery.
The only claim allowed to proceed to discovery was brought under Connecticut’s Unfair Trade Practices Act (CUPTA). In allowing the CUTPA claim to proceed, the Connecticut Supreme Court wrote in its Soto v. Bushmaster (4-3) opinion, “[T]he plaintiffs allege that the defendants’ wrongful advertising magnified the lethality of the Sandy Hook massacre by inspiring Lanza or causing him to select a more efficiently deadly weapon for his attack. Proving such a causal link at trial may prove to be a Herculean task.”
NSSF believes the Court incorrectly allowed this one claim to go forward to discovery. Nevertheless, plaintiffs never proved ROC’s marketing materials were ever seen by Nancy Lanza, who legally purchased her rifle, or by her son who murdered her and committed the atrocious crimes, let alone “inspired” either of them to select the rifle that was criminally misused in the tragedy. We remain confident ROC would have prevailed had this case proceeded to trial.
Legislation Through Litigation
Still, gun control groups see a path forward to attack the industry. If they can keep firearm manufacturers from talking about firearms, which are Constitutionally-protected, they believe they can diminish the firearm industry.
Dragging gun manufacturers into court over advertising appears to be the tactic they’ll use much in the same way “public nuisance” lawsuits became a tactic beginning in the late 1990’s before the bipartisan passage of the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005.
The goal now is the same as it was then. Gun control advocates want to make the firearm industry the “next tobacco” and sue manufacturers into oblivion. It’s another run at “legislation through litigation.” What gun control zealots cannot achieve because of the high hurdles in the Constitution and Bill of Rights, and the lack of public support for gun control legislation, they’re attempting to achieve in the courtroom.
It’s the same tactic that disgraced former New York Democratic Gov. Andrew Cuomo uttered when he was Housing and Urban Development Secretary in the Clinton administration and successfully pressured gun manufacturers to come to heel with the threat of public nuisance lawsuits. He threatened gun companies with “death by a thousand cuts.” It was the same goal of the failed municipal “public nuisance” lawsuits from 20 years ago brought by antigun mayors represented by the Brady Center and greedy trial lawyers.
That goal still has the gun control groups and trial lawyers salivating.
“I knew that without a single document I could make the case that there was a connection between the marketing of the gun in the game, this kid and the shooting,” explained Josh Koskoff, the lawyer representing the plaintiffs in the case, to The New York Times.
Marketing materials will be made public in the coming weeks. The settlement has gun control politicians moving to create more barriers to firearm manufacturers. They’re homing in on advertising to punish firearm manufacturers for the criminal misdeeds of murderers.
Last year at a seminar held by Duke, Yale, and New York Universities’ schools of law on firearms litigation, the gun control groups’ lawyers and lawyers from large white shoe firms openly acknowledged that repeal of the PLCAA is not possible politically, so the path forward is to essentially weaponize the holding in Soto and bring claims based on advertising and marketing.
California’s Democratic Gov. Gavin Newsom announced a new gun control package he wants to sign into law. In addition to legislation that would allow individuals and the state attorney general to sue manufacturers for the criminal actions of remote third parties, he’s also eyeing a bill, AB 2571, which would prohibit firearm manufacturers from supposedly advertising firearms to children.
Children, though, can’t purchase firearms. Only adults over the age of 18 can purchase rifles and shotguns and only adults over 21 can purchase handguns. The legislation takes a wide-ranging approach that threatens any youth-model firearm from being advertised. Period.
The New York public nuisance law being challenged by NSSF and industry members would allow lawsuits against members of the industry based on marketing and advertising.
Some judges aren’t enforcing the PLCAA. For example, San Diego Superior Court Judge Kenneth Medel denied Smith & Wesson’s motion to dismiss in a case arising from the murders at San Diego’s Chabad of Poway Synagogue in Poway, Calif., in April 2019. Smith & Wesson argued that the PLCAA required the case be dismissed.
The Brady Center, representing the plaintiffs in the case, claimed the semiautomatic rifle labeled an “M&P-15” could be readily converted to an automatic firearm (an utterly false premise) and “M&P,” which stands for Military and Police, were marketing tactics “that attracted impulsive young men with military complexes who were particularly likely to be attracted to the unique ability of AR-15 style weapons.”
Echoing the themes advanced in Soto v. Bushmaster, Brady even attached to the complaint the ads they found objectionable. Instead of considering the ads as a matter of law as he should have, Judge Medal accepted at face value Brady’s claim that the company violated California’s Unfair Competition Law, which prohibits deceptive marketing, and allowed the case to go forward.
Constitutionally Protected Commercial Speech Attacked
In the Smith & Wesson case, Professor Eugene Volokh, a renowned Constitutional law scholar at University of California – Los Angeles School of Law, authored an amicus brief on behalf of several leading First Amendment scholars. He argued that the firearm manufacturer’s advertisements were commercial speech fully protected by the First Amendment.
“They convey the message that the company’s firearms are of high-quality, enjoyable for target shooting, effective for lawful self-defense, and, as to some of its firearms, inexpensive to use. The advertisements accurately note that the depicted firearms are generally similar to weapons lawfully and honorably used by our nation’s law enforcement officers.”
Professor Volokh added that the advertising cannot be categorized as “incitement” to illegal criminal activity, nor can it be construed as negligent or misleading.
“Smith & Wesson’s advertisements express the view that gun ownership, and ownership of the M&P 15 rifles in particular, is proper and can even be righteous and noble, if one uses them in the disciplined way that most police use them. Plaintiffs presumably disagree with that view – but the First Amendment precludes liability for expressing it.”
This is the new playbook. Gun control orgs will do the same thing that was done with “public nuisance” lawsuits in the late 1990s and early 2000s, only with advertising. The claims will be any advertising is dangerous, no matter how truthful the ad, no matter how lawful the activity and no matter the fact that firearm manufacturers market their products to those who can pass the FBI’s National Instant Criminal Background Check System (NICS).
Gun control will try to nullify speech surrounding guns so they can nullify the right to own one.
Truthful commercial speech that does not incite violence or encourage unlawful behavior is protected fully by the First Amendment, especially when that speech concerns Second Amendment activity, even if antigun zealots dislike the viewpoint expressed by members of the firearm industry.
Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.