Victims of a shooting at the Chabad of Poway Synagogue in California brought state-law claims against several defendants in California state court. Among the defendants is Smith & Wesson, the manufacturer of the firearm used in the shooting. The plaintiffs allege that Smith & Wesson is liable for negligent design, marketing, and distribution of its firearms; that its actions created a public nuisance; and that its advertising was false or misleading under California’s unfair business practices law. Smith & Wesson moved to dismiss the claims against it, arguing that its advertising was protected by the First Amendment.
In an amicus brief supporting the plaintiffs, Public Citizen explained that the First Amendment does not apply to claims against Smith & Wesson to the extent that they relate to Smith & Wesson’s course of conduct, rather than its advertising. And even to the extent that the claims are directed at Smith & Wesson’s advertising, the brief explained that commercial speech that promotes unlawful conduct or is false or misleading is not entitled to First Amendment protection. Further, to the extent that the plaintiffs’ claim are directed at commercial speech protected by the First Amendment, the applicable standard for assessing whether the claims satisfy First Amendment principles is the intermediate-scrutiny standard set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), rather than the incitement standard of Brandenburg v. Ohio, 395 U.S. 444 (1969). In July 2021, the superior court concluded that that the plaintiffs’ complaint adequately alleged that Smith & Wesson’s marketing practices promoted unlawful activity, and it overruled the company’s demurrer insofar as it was based on the First Amendment.