[00:00:00] Speaker 01:
May it please the court?

[00:00:06] Speaker 01:
The law of injunction in federal courts has received an awful lot of attention lately.

[00:00:11] Speaker 01:
Maybe we're going to see some reform of it.

[00:00:14] Speaker 01:
But one thing that we won't see is a changing of the law of precedent, which is what the problem was in this case.

[00:00:23] Speaker 01:
Trial courts are required to follow the text and the reasoning of courts that sit above them.

[00:00:28] Speaker 00:
And in this case... Let me ask you a question.

[00:00:30] Speaker 01:
Yes, Your Honor.

[00:00:32] Speaker 00:
Mr. Kilmer, did you understand our prior opinion to join the whole statute?

[00:00:39] Speaker 01:
Yes, Your Honor.

[00:00:41] Speaker 00:
So do we need to reach the merits in this particular case?

[00:00:45] Speaker 01:
No, I don't think you do, Your Honor.

[00:00:46] Speaker 01:
I think the text was pretty clear in the mandate.

[00:00:49] Speaker 01:
If this court had wanted to enjoin only subsection A, I believe it would have done so.

[00:00:53] Speaker 01:
I believe we cited a case, Brockett versus Spokane, Arcane in this case.

[00:01:00] Speaker 01:
In the 1985 case, it was the U.S.

[00:01:01] Speaker 01:
Supreme Court said that courts are required to narrow their injunctive relief when striking down a statute.

[00:01:07] Speaker 01:
I'm not cynical enough to believe that this court either ignored that or didn't know that law existed.

[00:01:11] Speaker 00:
Let me ask you another question.

[00:01:14] Speaker 00:
Can we hold that California has waived its argument regarding the severability of B in the statute?

[00:01:21] Speaker 01:
Yes, Your Honor.

[00:01:23] Speaker 00:
That's what I thought you argued.

[00:01:25] Speaker 00:
Did they ever raise an interest in the privacy of minors at any point in this prior to going back to the district court?

[00:01:36] Speaker 01:
No, Your Honor.

[00:01:37] Speaker 01:
There is some mention in the legislative record

[00:01:41] Speaker 00:
We're not talking about legislative record.

[00:01:44] Speaker 00:
We're talking about in front of a judge.

[00:01:47] Speaker 00:
Did they ever raise it to us?

[00:01:49] Speaker 00:
No.

[00:01:50] Speaker 00:
I didn't ever think they did.

[00:01:52] Speaker 01:
And also, we're here on an intermediate scrutiny under Central Hudson.

[00:01:57] Speaker 01:
We're not on a rational basis case where we're supposed to use a Ouija board to try and find out what the legislator might have meant if they could have... They didn't write that into the statute, so it's completely missing from this challenge law.

[00:02:15] Speaker 00:
My understanding was that the opinion was not sparse.

[00:02:20] Speaker 00:
I mean, I helped write it.

[00:02:22] Speaker 00:
I signed on to it.

[00:02:23] Speaker 00:
I saw that it was a good opinion.

[00:02:25] Speaker 00:
Didn't seem to me like it was at all sparse in covering all the statute.

[00:02:31] Speaker 00:
We said Section 229-4980 is likely unconstitutional under the First Amendment.

[00:02:39] Speaker 00:
We reversed the district court's denial of the preliminary injunction.

[00:02:45] Speaker 00:
We didn't cite B, but our opinion treated the statute subdivisions as parts of the integral as a whole, including the advertising subdivision, division subdivision, the penalty subdivision.

[00:03:01] Speaker 00:
All those things are covered.

[00:03:03] Speaker 00:
I'm trying to figure out why we're here.

[00:03:09] Speaker 01:
I would prefer to be here as an appellee as well, Your Honor.

[00:03:13] Speaker 01:
I believe that the trial court should have read the decision in the way that you're intimating and should have challenged the state to either take their case to the US Supreme Court or back to this court.

[00:03:25] Speaker 01:
So the plain text of the mandate, I believe, controls.

[00:03:30] Speaker 01:
And if the court finds that's the case, then no further analysis is necessary.

[00:03:37] Speaker 00:
It's my understanding from reading the record that the district court even questions certifying a question to us about the scope of our opinion.

[00:03:48] Speaker 01:
But that didn't happen, right?

[00:03:50] Speaker 01:
We suggested that to the court, Your Honor, during argument in the district court.

[00:03:55] Speaker 01:
Ultimately the judge didn't didn't pursue that course anybody opposed that I know I don't believe it was opposed in fact We were I think both sides thought that it might actually be a good idea, but the judge didn't pursue that course of action Well, I didn't mean to interrupt your argument, but I just felt like those were questions that were on my mind and I Really couldn't understand why we were back here

[00:04:25] Speaker 01:
I share your quandary, Your Honor.

[00:04:36] Speaker 02:
It's a secondary issue, but the language of the injunction, you wanted to modify the language used by the district court.

[00:04:43] Speaker 02:
Why isn't it enough when it says the AG should provide notice to the local officials about the decision, about the law?

[00:04:52] Speaker 01:
Well, Your Honor, the Rule 65 tells us that the courts can enjoin nonparties who are either in privity or are acting in concert.

[00:05:04] Speaker 01:
We cited a case in our brief that the city attorney of Los Angeles, for example, and the AG's office, the attorney general's office, had just recently obtained a half a million dollar settlement from a media company on this issue of a statute that actually does address

[00:05:21] Speaker 01:
minor privacy, which obviously this doesn't.

[00:05:25] Speaker 01:
So we're asking the court to actually be specific in using the language of Rule 65 to include not just the Attorney General's office, but those who he has supervisory power over, and those he acts in concert with, and those he acts in privity with.

[00:05:43] Speaker 01:
So we think that the injunction that issues should also bind

[00:05:48] Speaker 01:
county council and city attorneys.

[00:05:49] Speaker 02:
Is there any indication with respect to this case that local officials may not abide by it?

[00:05:55] Speaker 02:
No Your Honor, we only have the one example that we cited in our brief.

[00:06:03] Speaker 01:
Well Your Honor, I'll preserve the rest of my time and sit down.

[00:06:07] Speaker 01:
Great, thank you.

[00:06:20] Speaker 03:
Good afternoon This appeal is about whether the district court followed this court's mandate for further proceedings consistent with this court's ruling the district court properly followed that mandate based on the record before it and

[00:06:42] Speaker 00:
Subdivision a of the statute and subdivision B regulate two different types of conduct just a minute that's suggesting that it does but Let me ask you did you ever argue?

[00:06:54] Speaker 00:
ever prior to getting back to the district court that there was a Separate part of this statute that the statute had separate parts that there was somehow

[00:07:10] Speaker 00:
the statute could be severed.

[00:07:13] Speaker 00:
Did you ever argue that before getting back to district court?

[00:07:16] Speaker 03:
I have two part answer to that.

[00:07:18] Speaker 00:
The first part is that it was... Well, answer my question.

[00:07:22] Speaker 00:
Did you ever do it?

[00:07:22] Speaker 03:
I will.

[00:07:23] Speaker 03:
Well, the answer to that is... No.

[00:07:26] Speaker 03:
May I say why I don't think that's relevant?

[00:07:29] Speaker 00:
I think it's pretty relevant, but I just want you to ask why did you ever do it?

[00:07:34] Speaker 00:
Because your honor it was I'm not asking you why did you do it?

[00:07:38] Speaker 00:
Did you ever do it?

[00:07:39] Speaker 00:
Did you ever ask to sever be from the rest of the statute?

[00:07:43] Speaker 03:
It's presumptively severable your honor Well now just a minute.

[00:07:48] Speaker 00:
I've got committee to general arrows to rondo Beach I've got

[00:07:56] Speaker 00:
IMDbcom, Inc.

[00:07:59] Speaker 00:
versus Becerra.

[00:08:01] Speaker 00:
Both of those say that when someone doesn't argue severability the first time, when they don't argue it, they waive it and it's done and we don't consider it again.

[00:08:17] Speaker 03:
May I explain why I don't think this issue of waiver gets to whether or not the district court abuse its discretion?

[00:08:22] Speaker 03:
The district court made a decision on whether to join the statute and in that decision it said in a footnote that it was not addressing subdivision B because the plaintiffs had made no argument about subdivision B.

[00:08:35] Speaker 00:
Just a minute that what the district court said about no argument or argument You if you wanted to argue about subdivision B You needed to argue that it could be severed and could be sustained on its own But you never argued that so it when it came on appeal it was one statute

[00:08:57] Speaker 00:
It was the total statute.

[00:08:59] Speaker 00:
Nobody argued about A or B or even the subparts, subdivision 116, subdivision 1114, or the penalties.

[00:09:11] Speaker 00:
Nobody argued about that when it came to us.

[00:09:15] Speaker 00:
And so by doing that, it seems to me you waived it under our president.

[00:09:20] Speaker 00:
I disagree your honor because one plaintiff well name me one case where a a person who comes to my court and is arguing something in front of me and doesn't argue that it is a part of the statute that ought to be severed

[00:09:39] Speaker 00:
and then goes back to district court, should be able to come back and then argue that it's severed on reappeal, if you will.

[00:09:49] Speaker 03:
I think that waiver could potentially be relevant had the district court granted the injunction as to both A and B, then it had become before this court, and then the court had addressed it.

[00:10:01] Speaker 03:
But the fact is,

[00:10:03] Speaker 00:
This court does not appear to have so what you're really arguing then counselor is that you can defend a statute in front of the district court without ever talking about be.

[00:10:16] Speaker 00:
You can then argue a statute and defend that statute in front of this court without ever talking about B, never asking the district court to sever at all, never asking me to sever.

[00:10:29] Speaker 00:
But when you get the decision from me on our court back in the district court, then you can ask it to be severed.

[00:10:37] Speaker 00:
Is that what your argument?

[00:10:39] Speaker 03:
I am arguing that, Your Honor.

[00:10:40] Speaker 00:
Where do you find a case that says that?

[00:10:43] Speaker 00:
Find me one case, because I look for it.

[00:10:47] Speaker 00:
Give me one case.

[00:10:48] Speaker 03:
If I may explain my answer in a different way.

[00:10:51] Speaker 00:
Well, I just would like a case that tells me that that's what happened.

[00:10:53] Speaker 03:
I do not know of a case, but I would like to explain my answer as to why that's OK.

[00:10:57] Speaker 00:
OK, you can explain it, but I guess I'm bound by law.

[00:11:01] Speaker 00:
Right.

[00:11:02] Speaker 00:
And I'm bound by precedent.

[00:11:04] Speaker 03:
And part of that law is that the plaintiff has the burden of proving that they are entitled to the injunction that they're asking for.

[00:11:12] Speaker 03:
This court considered the constitutionality, and when it defined the statute, it clearly was only talking about the advertising regulations in subdivision A. Then it went back to the district court, and the district court had to determine, okay, are plaintiffs entitled to, have they shown, based on their showing and the district court and the- Well, frankly, they wouldn't, frankly, if I might interrupt you, they wouldn't say that B is anything but another advertising regulation.

[00:11:42] Speaker 00:
Their argument is it's the same.

[00:11:45] Speaker 00:
So they made one argument in front of me, one argument in front of the district court, all arguing that it was all a part of the same statute.

[00:11:55] Speaker 00:
The state did not one thing to stop them, did not one thing to preserve any part of the statute until they get back to the district court and don't like the decision of the court of appeals.

[00:12:09] Speaker 00:
And then they come up with some crazy argument like that.

[00:12:11] Speaker 03:
But the thing is, plaintiffs never once did mention Subdivision B, much less tie it in any way to Subdivision A. And it was their burden to show their entitled to an injunction of both, because they regulate different conduct.

[00:12:23] Speaker 00:
That suggests that they should have done it, if you didn't even argue that it was what you ought to be.

[00:12:29] Speaker 00:
That's to suggest that their idea of what the statute was and what they argued about it was wrong and that there was some part of it that didn't cover advertising and that you didn't need to say anything about that on appeal or in the district court the first time and the first time come up with it when it goes back to the district court the second time.

[00:12:52] Speaker 00:
That's what you're arguing to me.

[00:12:55] Speaker 03:
Think it certainly would have been preferable for everyone to address this earlier I absolutely will concede that but I still think it is a plaintiff's burden to show their injunction They're entitled with if the state does not bring up or I should say any defendant Does not bring up an issue of a provision that has never been briefed or considered?

[00:13:13] Speaker 03:
Obviously that makes the issue less clear and that doesn't help anyone involved but the fact is we are where we are now and

[00:13:21] Speaker 03:
And the fact is the only subdivision that's been considered is subdivision A.

[00:13:26] Speaker 03:
This is a preliminary injunction.

[00:13:28] Speaker 03:
This is not the end of the case.

[00:13:29] Speaker 00:
How can you say the only thing that was considered was A, when we didn't cite B, yes, but the honest truth is, in that opinion, we cited to all of the statute.

[00:13:44] Speaker 00:
Our opinion treated the statute's subdivisions as part of the whole.

[00:13:47] Speaker 00:
We included advertising subdivision.

[00:13:51] Speaker 00:
We included the definition subdivision.

[00:13:53] Speaker 00:
We include the penalties subdivision.

[00:13:56] Speaker 00:
We even noted that the subdivisions work together to regulate speech.

[00:14:03] Speaker 00:
I guess I'm having a tough time understanding how you can say we did not hit the whole statute.

[00:14:11] Speaker 03:
Your Honor, Subdivision B is how certain persons use minors' private information.

[00:14:18] Speaker 03:
It is not about the speech of an advertisement itself.

[00:14:22] Speaker 03:
And when this court defined the statute at issue, it quoted Subdivision A specifically saying that it mandates a firearm industry member shall not advertise, market, or arrange for placement of an advertising or marketing communication

[00:14:37] Speaker 03:
offering or promoting any firearm related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.

[00:14:44] Speaker 03:
That is how the court defined the statute that it was considering in this case.

[00:14:48] Speaker 03:
That is the direct language of subdivision A. Subdivision B is separate and it relates to how minors' private information is treated, which is not at all what subdivision A is about.

[00:14:58] Speaker 02:
But subsection B has the same problem, which is it's a content-based restriction.

[00:15:02] Speaker 02:
It focuses specifically only on firearms, right?

[00:15:06] Speaker 03:
Your honor, we haven't had the opportunity to brief the merits of Subdivision B, and we think that is something that should be done in the district court.

[00:15:14] Speaker 03:
But we think that the leading case on this would be retail digital network, which would eventually lead to a central Hudson analysis, which also has not been done in the district court, which is why it would be appropriate for review.

[00:15:25] Speaker 02:
Has California ever passed a law similar so-called privacy provision relating to a particular subject matter?

[00:15:32] Speaker 03:
Again, this is not something we've had occasion to brief and it's not, that's not something I've personally thoroughly researched.

[00:15:39] Speaker 02:
I mean, could California pass a law similar privacy provision law consistent with the First Amendment saying video game companies can't collect and use information related to minors if it involves violent video games because we know there's, you know, it may be harmful for young kids to play video games.

[00:15:58] Speaker 02:
Would that be consistent with the First Amendment?

[00:15:59] Speaker 03:
Again, your honor, I can't make any concessions as any hypotheticals since we've not briefed it, but I think the appropriate analysis would likely be to go through the steps of one, is it speech, and then two, to follow retail digital network, well two, is it commercial speech, and then if it is, go to retail digital network and follow central Hudson's scrutiny to determine that.

[00:16:22] Speaker 02:
It seems like we already did that analysis in our first opinion.

[00:16:25] Speaker 03:
Your honor, but the

[00:16:27] Speaker 03:
The answers to each because it different conduct is being regulated.

[00:16:31] Speaker 03:
It's a different state interest.

[00:16:33] Speaker 03:
There's a different analysis of whether there's a direct advancement of that interest, which this course in the previous opinion as a subdivision a would require evidence from the state, which we've not had the occasion to submit.

[00:16:44] Speaker 03:
And then there would be a new analysis of the specifics of the provision and and whether it is a reasonable fit to the state's interest So it is it's a it's a very specific inquiry as to the restriction itself that simply just hasn't done here why

[00:17:00] Speaker 03:
Why hasn't it been done?

[00:17:01] Speaker 00:
Yes.

[00:17:03] Speaker 00:
You knew it was going to come up to me and to my colleagues.

[00:17:07] Speaker 00:
You knew it was something we were going to look at.

[00:17:10] Speaker 00:
You're suggesting that it's a different subdivision and it isn't controlled by the same.

[00:17:14] Speaker 00:
If you're really suggesting that, it seems like, to me, kind of a lame argument.

[00:17:20] Speaker 00:
Well, we haven't looked at it yet, so don't do anything about it, Judge.

[00:17:24] Speaker 03:
Your Honor, I wouldn't say we haven't looked at it at all.

[00:17:26] Speaker 03:
We've certainly looked at the issue.

[00:17:27] Speaker 00:
Well, it seems to me that you ought to answer some questions.

[00:17:30] Speaker 00:
Why isn't this just like SORL versus IMSA CHELF?

[00:17:35] Speaker 03:
Your Honor, in Retail Digital Network, which analyzes SORL,

[00:17:39] Speaker 03:
It stated that Sorrell only spoke to the question of whether, in some circumstances, the use of data may be considered speech.

[00:17:47] Speaker 03:
It doesn't go to what level of scrutiny is involved, which regional digital networks said.

[00:17:54] Speaker 03:
It actually said, even in the case of content and speaker-based restrictions, still would be central Hudson scrutiny.

[00:18:02] Speaker 03:
So even if the court were to find that it was Beach, even if the court were to find that it's content and or speaker-based, we still will be looking at central Hutton scrutiny here.

[00:18:13] Speaker 03:
And I would say that there's been no briefing on the merits by plaintiffs, certainly not in the district court, and hardly any at all, and most even in the reply brief in this case.

[00:18:25] Speaker 03:
So there's not been a reasonable occasion for us to certainly submit evidence, much less do full briefing on this issue.

[00:18:33] Speaker 03:
And again, and plaintiffs even concede that don't need to consider the merits of B here.

[00:18:38] Speaker 00:
And I would like to also add that- The reason they say you don't have to concede the merits is because they say if you were going to make an argument about B, you should have made it.

[00:18:48] Speaker 03:
Well, Your Honor, I mean, I would say.

[00:18:49] Speaker 00:
I mean, it isn't that they wouldn't have done it.

[00:18:51] Speaker 00:
It's just that, come on, be fair.

[00:18:55] Speaker 00:
If you really wanted to make that argument, you should have made it long before it came back to the district court.

[00:19:00] Speaker 00:
That's what they're arguing.

[00:19:02] Speaker 00:
And that's why I took up their argument to you now.

[00:19:05] Speaker 00:
It's because I want to hear what your answer is.

[00:19:07] Speaker 00:
I'm not trying to say you're bad or that you're terrible or anything like that.

[00:19:12] Speaker 00:
I'm just trying to say, come on, what's the answer?

[00:19:15] Speaker 00:
I mean, I have never seen a case

[00:19:18] Speaker 00:
where nobody says that the one part of the statute is different or that it ought to be analyzed differently or that it isn't a part of the whole and tried to sever it so that they could make that argument when somebody's moving for an injunction.

[00:19:37] Speaker 00:
I've just never found it.

[00:19:39] Speaker 00:
And then I looked all over to find, if you will, something which would cover the severance that should have been argued, and I couldn't find that.

[00:19:49] Speaker 00:
And that's why I'm asking these questions.

[00:19:52] Speaker 00:
Give me some help.

[00:19:53] Speaker 03:
Yeah, no, Your Honor.

[00:19:54] Speaker 03:
I understand.

[00:19:55] Speaker 03:
And to be frank, I don't know of another situation.

[00:19:57] Speaker 03:
I have not been involved in another situation like this.

[00:19:59] Speaker 03:
I've not seen another situation.

[00:20:00] Speaker 03:
But in these types of situations, which we haven't seen before, I think you have to revert to guiding principles.

[00:20:05] Speaker 00:
Here, I think well guiding principles would be if you haven't moved to sever underneath you're done.

[00:20:12] Speaker 03:
I Disagree with that well there are other That's the cases.

[00:20:17] Speaker 03:
That's the cases I have okay, and you can't give me another case well says it's different well There are many cases will give me one no there are many cases under there many cases saying that Plaintiff has a burden to prove that they are entitled to injunction of the scope that they seek and

[00:20:31] Speaker 00:
But that should have been argued in front of the district court.

[00:20:37] Speaker 03:
If you're not going to make that argument... But the defendant is not required to argue about a plethora of issues that the plaintiff doesn't argue.

[00:20:46] Speaker 03:
It's the plaintiff's burden to make a showing to satisfy what they're required to satisfy.

[00:20:51] Speaker 03:
And then I think another principle is simply that injunction should be narrowly drawn.

[00:20:58] Speaker 03:
And I think those should be the guiding principles here.

[00:21:00] Speaker 03:
I would just like to make sure that I have time to add that if this course does believe that subdivision B should be preliminarily enjoined, it should order this based on the reasoning of its prior opinion.

[00:21:11] Speaker 03:
It's declined to Weigh subdivision be on the merits or create new first amendment law since there is no record below and they're Simply our positions there simply has been no occasion to create a record that would be necessary to do that kind of review here so I'm open I'm going to questions, but I wanted to because this is a preliminary injunction and

[00:21:34] Speaker 03:
We were to say the injunction and joins be just like we thought it was going to in the first place You've every right to bring that up when you have the regular case right exactly your honor That's another reason why we think if you believe it should be preliminary enjoyed it should be done on the basis of the prior the prior opinion And that is that is all the argument that we have for you today unless you have any further questions Great.

[00:22:00] Speaker 03:
Thank you.

[00:22:01] Speaker 03:
Thank you very much

[00:22:11] Speaker 01:
Just so we're clear, Your Honors, we want the whole statute in joint, not just A and B. Part of the problem is that this statute is so internally inconsistent, Section D actually makes it impossible for my clients to even comply with Section B, because it forbids my clients from even getting or collecting age information about the people on its subscriber list.

[00:22:34] Speaker 01:
Look, the court below did not follow the reasoning of this court's central Hudson analysis below,

[00:22:41] Speaker 01:
It's arguable that both the severance arguments and the predicate act doctrine are actually part of the central Hudson commercials speech analysis when we take a look at the breadth of the fit between the statute and the state's purpose.

[00:23:01] Speaker 01:
And as you pointed out earlier, Your Honor,

[00:23:04] Speaker 01:
The purpose clause of B is what kills the entire statute.

[00:23:09] Speaker 01:
The purpose is still to try and reach minors about gun-related advertisements that are both lawful and truthful.

[00:23:18] Speaker 01:
And if that's what the government is trying to do with subsection B and D, it still fails under this Court's original opinion.

[00:23:26] Speaker 01:
With that, if the Court has no further questions, I'll submit.

[00:23:30] Speaker 02:
Great.

[00:23:30] Speaker 02:
Thank you.

[00:23:31] Speaker 02:
Thank you both for the argument.

[00:23:33] Speaker 02:
The case has been submitted.

[00:23:34] Speaker 02:
Thank you.