A suicide prevention pamphlet required to be distributed by gun sellers in Maryland is not a violation of First Amendment rights, the Fourth Circuit ruled in Jan. 2024. Pamphlet on merchant counter image courtesy YouTube screengrab Washington, D.C. Fox affiliate WTTG.
A federal appeals court has ruled that gun shop owners’ First Amendment rights are not being violated because they are required by a local ordinance to distribute pamphlets on firearms and suicide prevention in their stores.
A group of gun merchants in Anne Arundel County, Maryland argued the recently added county ordinance, which followed a steady uptick in local suicide deaths, violated their right “not to speak” on the subject at all.
But U.S. Circuit Judge Paul Niemeyer, an appointee of President Ronald Reagan, was not convinced, writing in an opinion for the U.S. Court of Appeals Fourth Circuit that the 8-page public health initiative pamphlets were constitutionally permissible because it compelled commercial speech that was factual and uncontroversial and furthered a government interest, complying with the test established by Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio.
After the 2018 mass shooting in Annapolis at the local newspaper the Capital Gazette, an order was created by the county to establish a task force that “could use its public health system to reduce gun violence,” Niemeyer wrote.
A resolution was voted on to declare suicide a public health crisis and with that, the pamphlets from the Department of Health in conjunction with the American Suicide Prevention, followed.
Suicide by a firearm in Anne Arundel accounted for a staggering 67% of the community gun deaths from 2013 to 2017 and those numbers had only ticked up, Niemeyer noted.
The pamphlets include information on a succinct range of topics. There are brief details on how to identify when people are more at risk for suicide; how to identify when suicide warning signs should be taken seriously; that “reaching out can help save a life”; how to store firearms based on four options including a lock box, cable box, gun case, or full size gun safe.
The brochure mentions a gun safety website aimed at protecting children from unsecured weapons and also offers mental health resources like how to reach suicide prevention hotline numbers or how to have free text sessions with trained counselors 24/7.
The brochure does not, however, state outright that guns cause suicide.
But the plaintiffs, a gun rights advocacy group, Maryland Shall Issue, Inc., argued this was implied and the literature discouraged purchasers, too.
The county ordinance, they argued, was about “demonizing” gun ownership and further, as Niemeyer acknowledged in his opinion, the ordinance was lacking because it didn’t take into account other means one might use to commit suicide.
They reason that if health and safety relating to suicide were the real purpose, the pamphlet is ‘underinclusive’ and should also have warned about the use of rope because ‘hanging is an equally lethal form of suicide and the second most common mode of suicide.’ Yet, the County’s literature made no mention of suicide by rope.
Thus, they conclude that the literature’s “focus on firearms and only firearms (and ammunition for firearms) makes plain that the real purpose of the literature [was] to discourage the purchase and possession of firearms and ammunition by linking possession of firearms to suicide and illegal conflict resolution.”
The district court that heard the case before appeal had already decided that the pamphlet’s meaning was clear: a firearm, like other items, could be used, but the message was to inform gun owners on how to safely store their firearms and that firearms are a risk factor.
The link was not causal, the judge explained in the 23-page opinion.
“We conclude that this pamphlet, taken as a whole addresses suicide as a public health and safety concern and advises gun owners on how they can help,” he wrote before adding that “the court did not read the literature to suggest a firearm should not be purchased because doing so causes suicide.” [Emphasis original]
“Rather, the pamphlet is more in line with other similar safety warnings — widely applicable and accepted — that gun owners should store guns safely, especially to prevent misuse to child access,” Niemeyer wrote.
He added:
If guns are the primary means of suicide and if guns are not accessible to persons with suicidal ideation, then the number of suicides would likely decline. The pamphlet is thus factual and therefore, in this case, also uncontroversial.
Court records reviewed by Law&Crime indicate that an initial violation of the pamphlet ordinance carries a $500 civil fine with a $1,000 civil fine for each subsequent offense.
In an interview with Courthouse News, an attorney for the gun rights organizations and four of the sellers involved in the case Mark Pennak said the decision was “profoundly wrong.”
Suicide is a leading cause of death in the United States, according to the Centers for Disease Control and Prevention, leading to nearly 50,000 reported deaths in 2021, or “one death every 11 minutes.”
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