California has been very busy fixing the world, from mandating public school curriculum to dictating how toy and children’s stores should place products on shelves. Eugene Volokh addresses the newly enacted law from a free speech perspective.

55.7. The Legislature finds and declares both of the following:

(a) Unjustified differences in similar products that are traditionally marketed either for girls or for boys can be more easily identified by the consumer if similar items are displayed closer to one another in one, undivided area of the retail sales floor.

(b) Keeping similar items that are traditionally marketed either for girls or for boys separated makes it more difficult for the consumer to compare the products and incorrectly implies that their use by one gender is inappropriate.

55.8. (a) A retail department store that offers childcare items or toys for sale shall maintain a gender neutral section or area, to be labeled at the discretion of the retailer, in which a reasonable selection of the items and toys for children [defined as age 12 or younger] that it sells shall be displayed, regardless of whether they have been traditionally marketed for either girls or for boys.

Graciously, the law only applies to stores physically within California, and only stores that have 500 or more employees within California. This seems directed toward big box kids’ stores like Toys-Я-Us, but for the fact that it keeps closing its stores, and not small mom-and-pop (mom-and-mom?) stores on Main Street.

Even though there’s a dearth of precedent as no one has tried to micromanage retail floor space in this manner, Volokh argues that this law cannot pass muster under the First Amendment.

I can’t be sure—I know of no precedents that are squarely on point—but this seems to be unconstitutional. A retailer’s speech about its products, even something as factual as price labeling, is generally protected treated as “commercial speech” (meaning commercial advertising) that’s presumptively protected by the First Amendment.

Of course, commercial speech (speech relating to the commercial availability or quality of a good or service) may be protected, but under a lesser standard than non-commercial speech. Rather than a restriction be subject to strict scrutiny, it need only survive rational basis scrutiny, which isn’t much of a test. Still, Eugene argues that it would fail.

And the Legislature is perfectly clear that it’s trying to regulate this communication—gender-segregated displays, it concludes, “incorrectly impl[y] that [certain toys’] use by one gender is inappropriate.” This sort of attempt to regulate commercial advertising because of the social viewpoint that it conveys seems to me unconstitutional.

Is the state’s interest in eradicating gender discrimination by mandating that big box toy stores create a gender-neutral toy section that allows consumers to compare and select toys without regard to how the store has chosen to segregate them, rational? Maybe. It may not be effective. It may be dumb. But that doesn’t make it irrational.

Could it be said with certainty that placing Barbie next to G.I. Joe for little Suzy to pick which toy will be more likely to survive the zombie apocalypse won’t provide her with options she might not consider if both were in gendered sales areas? It could be. And there’s nothing wrong with little Suzy picking either one. Hey, it’s her doll, right?

But there is another concern here quite distinct from the First Amendment issue raised by Eugene. By what authority does a state get to dictate how a store uses its shelf space? Retail shelf space is very valuable real estate, and stores employ very tactical approaches to what products get placed where, scientifically analyzing how placement effects sales and, thus, profits. For a state to stick its nose into how stores use their real estate is no small deal.

The authority to enact laws prohibiting employment discrimination broke through a huge barrier, but that issue has long been decided. That authority then slipped into public accommodation for disabilities to create a duty to remove barriers for people with disabilities to use facilities that were open to the public. But is dictating how stores design their floor space, use their shelf space, a slide too far down the slippery slope?

Beyond the First Amendment implications of compelling stores to create gender neutral toy spaces, there is a Takings Clause aspect to the state’s assertion of control over how a private enterprise decides to divvy up its very valuable real estate. The Fifth Amendment Takings Clause provides “private property [shall not] be taken for public use, without just compensation.” Here, California is certainly putting its sticky finger on private property, the physical shelf and floor space of a private store. Is it a regulatory Taking?

Under the police power, the government has authority to act in furtherance of “the health, safety, morals, or general welfare” of the public. There is certainly an argument to be made that eradicating toy discrimination furthers the public “morals,” that word being sufficiently malleable to serve pretty much any purpose framed as a public good. And it appears the law anticipates this challenge.

Keeping similar items that are traditionally marketed either for girls or for boys separated makes it more difficult for the consumer to compare the products and incorrectly implies that their use by one gender is inappropriate.

Whether it’s sufficiently difficult for consumers to compare toys separated by sex-based departments to warrant the exercise of police power is a stretch. Look around all you want. Girls are allowed to look at toys in the boy’s department and vice versa. Is it really all that difficult?

But the last reason, that it “incorrectly implies that their use by one gender is inappropriate” imputes a very dubious motive. Stores don’t give a hoot whether you buy a toy for your little girl, boy or anything in between, but that you buy. Do sections separated by sex imply anything more than stores having determined the best method of selling as much as possible is to use their retail space in that fashion? And if so, this law impairs their ability to sell as much as possible by regulating how floor and shelf space must be used, which certainly seems to be a rather expensive taking by the state from the store.