In 2022 Anne Arundel County enacted an ordinance requiring gun shops to display and distribute literature about firearm safety and suicide prevention to all customers who purchase guns or ammunition.

Businesses that run afoul of the mandate must pay a $500 fine for their first violation and $1,000 for each subsequent infraction.

Gun ownership rights group Maryland Shall Issue Inc. and four firearm dealers sued the county in the U.S. District Court for the District of Maryland, alleging that the ordinance violated the First Amendment by compelling businesses to convey the county's "ideological" message about gun safety and suicide.

According to the plaintiffs, the pamphlet the county created for distribution not only forces businesses to convey the "highly controversial" notion that firearms cause suicide, but also dissuades potential customers from purchasing guns.

The District Court granted summary judgment to Anne Arundel County in 2023, saying that the ordinance merely required gun dealers to provide a factual and uncontroversial health and safety warning about their commercial products in the form of a pamphlet.

The panel affirmed, saying that the ordinance satisfied the constitutional limits on compelled commercial speech outlined in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985).

Under Zauderer, compelled commercial speech is constitutional if it is factual and uncontroversial, reasonably related to the government's interest in protecting public health or safety, and not unduly burdensome, according to the panel.

Writing for the panel, U.S. Circuit Judge Paul V. Niemeyer first clarified that the pamphlet constitutes commercial speech because it provides warnings about the products offered by the gun dealers in their establishments.

Turning to the Zauderer factors, the panel said that the pamphlet is factual and uncontroversial because it merely relays established data showing that firearm access increases the risk of suicide.

"We do not read the pamphlet to suggest to the reader that he or she should not purchase a firearm," the panel added.

The mandate is also reasonably related to promoting public health and safety, the panel said, observing that firearms were the main means used to commit suicide in the county.

Finally, the ordinance is not unduly burdensome because it only takes seconds to place the pamphlet in the bag with the customer's purchase, according to the panel.

"The pamphlet is simply, and no more, a public health and safety advisory that does not discourage the purchase or ownership of guns," the panel concluded.

Mark W. Pennak of the Law Offices of Mark W. Pennak argued the case for the appellants. William E. Havemann of Hogan Lovells US LLP argued the case for the county.