The National Shooting Sports Foundation (NSSF) recently sent a letter to Federal Trade Commission (FTC) Chair Andrew Ferguson requesting the FTC investigate whether the Biden Administration’s Office of Gun Violence Prevention worked with anti-Second Amendment organizations to demand that the agency crack down on “deceptive and misleading claims” made by gun manufacturers. These efforts were supported by a group of anti-Second Amendment senators who wrote to then-FTC Chair Lina Khan asking her to investigate the gun industry's advertising practices.
The senators’ letter accused the gun industry of marketing to children because their ads referenced popular “first person shooter video games” like Call of Duty. The problem with this claim is that the majority of gamers are over 18—making it perfectly legal for the firearms industry to market their products to them. The letter also suggests that the gun industry is engaging in “deceptive” advertising by focusing on how firearm ownership can help law-abiding citizens protect themselves, their families, and their property. Once again, the senators’ claims do not fit the facts.
Gun owners use firearms in self-defense between 60,000 and 2,500,000 times per year, and private citizens are 85% more likely to use a gun for self-defense than to be killed by a firearm. It is not misleading to say that firearms can be a useful tool for self-defense. Sadly, it is also true that there are around 526 accidental gun deaths per year, as well as over 40,000 people wounded due to the careless use of firearms. However, the solution is not to restrict firearm advertising—but to promote responsible gun ownership. The gun industry, along with other pro-Second Amendment organizations, does engage in plenty of work in this area.
As weak as the arguments for restricting firearms advertising are, the main argument against such restrictions is that they violate the First Amendment. Supreme Court precedent establishes that commercial speech like advertising is protected by the First Amendment, although at a lower level than political or religious speech. Even under this lower standard of review, banning or otherwise restricting advertisements for firearms would likely be struck down by the courts.
But while a future gun-grabbing FTC Chair may not be able to directly restrict gun advertising, they may try to ban gun ads through the back door. One way to do this would be to condition approval of mergers and acquisitions of media companies—including social media companies—on an agreement to not promote “dangerous” products such as firearms. If this sounds familiar it is because it is the approach of current FTC Chair Andrew Ferguson. Ferguson has conditioned approval of advertising firm Omnicom’s acquisition of fellow advertising company Interpublic on the firms agreeing not to restrict web ad placements based on the sites' political content. Is it too hard to imagine a future progressive FTC conditioning a similar merger on a company’s agreement to not place ads on sites that promote products dangerous to public health, such as firearms?
Government agencies may not even have to directly threaten to deny approval of a merger or acquisition to get a company to disregard the Second Amendment rights of their consumers. For example, before winning approval of their purchase by Skydance, Paramount—who owns CBS—settled a lawsuit brought by President Trump alleging that 60 Minutes edited their interview with then-Democratic presidential candidate Kamala Harris to make her appear more knowledgable and coherent. President Trump claims this was done to make the Vice President more appealing to voters, and thus constituted election interference.
A long time 60 Minutes producer resigned earlier this year, saying the network was interfering with the program's editorial decisions to moderate criticisms of President Trump. While FCC Chair Brandon Carr did not explicitly demand these actions, his rhetoric about broadcasters being required to act in the “public interest", and his threats to block the Paramount-Skydance deal, no doubt played a role in Paramounts’s actions.
It is easy to imagine a progressive FTC or FCC Chair using this precedent to forbid a news program, podcast, or even entertainment program from including content considered pro-gun. Fortunately, the pro-Second Amendment movement is fighting any attempt to use spurious claims of “false and deceptive” advertising to infringe on the Second Amendment. According to Eric Pratt, Senior Vice President of Gun Owners of America, his group “is leading the charge to unravel many of Biden's unconstitutional restrictions in the courts, and we applaud President Trump for working to roll back other abuses—because the Second Amendment isn’t a bargaining chip, it’s the cornerstone of every American’s freedom."
