Federal bill to restrict the content of gun advertising

July 17, 2014


[Photo credit: Oleg Volk.]

From the “Children’s Firearms Marketing Safety Act,” proposed by Rep. Robin Kelly:

[T]he Federal Trade Commission shall promulgate rules … to prohibit any person from marketing firearms to children [defined as anyone under 18]. Such rules shall include the following:

(1) A prohibition on the use of cartoon characters to promote firearms and firearm products.

(2) A prohibition on firearm brand name merchandise marketed for children (such as hats, t-shirts, and stuffed animals).

(3) A prohibition on the use of firearm marketing campaigns with the specific intent to appeal to children.

(4) A prohibition on the manufacturing of a gun with colors or designs that are specifically designed with the purpose to appeal to children.

(5) A prohibition on the manufacturing of a gun intended for use by children that does not clearly and conspicuously note the risk posed by the firearm by labeling somewhere visible on the firearm any of the following:

(A) “Real gun, not a toy.”.

(B) “Actual firearm the use of which may result in death or serious bodily injury.”.

(C) “Dangerous weapon”.

(D) Other similar language determined by the Federal Trade Commission.

A few thoughts:

1. There’s no doubt that there’s a problem with under-18-year-old gun criminals. But I’m pretty sure that few such criminals are drawn to guns because they’ve seen a gun-promoting stuffed animals. And I strongly suspect that they would affirmatively avoid any “gun with colors or designs that are specifically designed with the purpose to appeal to children.”

2. Of course, there are guns that are marketed for children (see, for instance, here) — in my experience, chiefly rifles and shotguns that are crafted to be better used by small people (and that are indeed sometimes used by small adults) for target-shooting or hunting. But of course they aren’t sold to children: they are sold to adults, chiefly parents.

And while a child who grows up in a gun-owning household may well be moved by an ad campaign to ask the parents to buy him some fancy firearm, the parents are the ones who decide whether the child is mature enough to use the gun, and the parents who provide the proper supervision. Naturally, there’s always the risk that, despite such parental supervision the child will accidentally shoot someone (including himself or herself), or even intentionally misuse the gun. But I know of no evidence that any such promotions make this misuse materially more likely, or that such marketed-for-children guns are especially likely to be misused.

Naturally, one possible response is that the promotions’ purpose is to increase guns bought for children, that any increased gun access for children increases the risk of gun accidents, homicides, or suicides, and that the goal of the law is to reduce the number of children using guns. The theory would be that the sponsor doesn’t want parents to give access to any guns to their children, including all the guns marketed for adults, but that the only potentially politically and legally available target for the sponsor is the few guns marketed for children.

If that’s so, though, I’d like to make sure that people understand this: Under this theory, the purpose of the law is to reduce as much as possible parentally approved gun use by minors. And of course the effect of the law, if it would be at all effective, would thus be to reduce the number of children who grow up familiar with guns and open to gun ownership — thus making broader gun controls easier in the future.

3. On then to the legal analysis: I think the rules would likely be understood as limited to actual commercial promotion of gun sales, and not just advocacy of gun ownership or education about guns; NRA’s Eddie Eagle as such, for instance, would likely not be covered. Nonetheless, even commercial advertising gets substantial First Amendment protection, so long as it isn’t misleading, and doesn’t propose an illegal transaction; and “it’s for the children” isn’t enough of an argument for trumping this protection. Perhaps, when it comes to commercial advertising, serious evidence that the law will reduce death or injury would suffice to justify the restriction; but, as I argued above, I doubt there is any such evidence.

The ban on the use of cartoon characters — which can easily appeal to adults — to promote firearms and “firearm products” (whatever those are) would thus be pretty clearly unconstitutional. Likewise for the ban on children’s hats, T-shirts, and stuffed animals (which I assume would likely be hunting-related stuffed animals) that promote firearm brands. Likewise for firearm marketing campaigns intended to appeal to children (which, again, likely focus on child-size hunting and target-shooting long guns).

The ban on “manufacturing of a gun with colors or designs that are specifically designed with the purpose to appeal to children” is potentially less clear, simply because it’s not completely clear that color restrictions are treated as content-based. See Regan v. Time, Inc. (1984), though that case might be distinguishable on the grounds that the color restrictions there stemmed not from the supposed undue appeal of certain colors, but from the risk that color reproductions of currency might look confusingly like the real thing.

Finally, the requirement that a gun contain certain labels would probably be constitutional (generally speaking, compelled speech on commercial advertisements is usually constitutional, at least when it is plausibly aimed at preventing consumer confusion; see this post for more). But my guess is that many gun manufacturers would be delighted to add a tasteful “Dangerous weapon” inscription on the child-size long guns that they use.

4. This having been said, the labeling requirement may well be affirmatively dangerous, to the extent that it leads children to rely on labels (does the gun have a “real gun, not a toy” label?) rather than to rely on the assumption that any object that looks like a real gun is a real gun. Recall that the proposed law does not require labeling of all guns, old and new; it requires labeling only of guns marketed for children. Most guns would still not be labeled. The more children learn “oh, there’s no ‘real gun’ label, this must be a toy,” the more they will be at risk when they come across a normal gun. (This isn’t to say that I would recommend labeling of all guns, which, to work, would have to apply to all guns, old and new; but labeling of only marketed-for-children guns seems especially dangerous.)

In any event, a bad proposal — except insofar as it reminds gun owners that politicians (and many of their constituents) are indeed willing to make proposals such as this.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
Continue reading 10 minutes left
Show Comments



Most Read National