There certainly has been lots of news across the Country on Free Speech disputes, leading to several First Amendment cases recently argued in the Supreme Court, which will likely affect billboard operation and laws. For example, after Facebook, TicTok, Instagram, X (formally known as Twitter), and other social media platforms banned former President Trump for his alleged inflammatory comments regarding the January 6 riots at the Capital, conservative States like Texas, Florida, and others passed laws prohibiting the platforms from removing posts expressing certain viewpoints. Florida Governor DeSantis announced when signing the 2021 legislation that “if Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.” Similarly, Texas Governor Abbott warned “it is now law that conservative viewpoints in Texas cannot be banned on social media.”
Last month, on February 26th, the Supreme Court heard oral arguments in the lawsuits the social media companies filed under the First Amendment to challenge the State laws, namely NetChoice vs Paxton and Moody vs NetChoice. The Plaintiffs argued that social media platforms are like privately owned and operated newspapers and other publications, which have traditionally enjoyed broad editorial discretion and legal protection to pick and choose what they print or refuse to print. By contrast, the Defendants claimed the platforms are more akin to public forums, and they are therefore more constrained by the First Amendment: “Facebook, Twitter, Instagram, and TikToc are not newspapers…Rather, they are platforms for widespread public expression and discourse. They are their own beast, but they are far closer to a public shopping center or a railroad than to The Manchester Union Leader.” The Court is expected to issue its decision this Fall.
So, what’s all of this got to do with billboards? Well, just this week I got several calls from clients, and I bet you’ve received similar ones from your advertisers, like this: “A very persistent man keeps calling and demanding that we post his ad promoting the Liberation of Palestine on our billboards, and when we politely refused, he threatened to sue us for First Amendment discrimination.” Or, perhaps you’ve received demands to promote another viewpoint, such as “Support Israel,” or for that matter, one politician or another for public office. Regardless of the particular viewpoint, the bottom line is that under current law, an out of home operator has the right to display, or refuse to display, messages on his privately owned billboard leased on privately owned property. But, when the billboard message becomes a public forum, such as when it is posted on a bus, train, or other public property or vehicle, the First Amendment may prohibit the viewpoint discrimination on the billboard.
It’s a slippery slope from social media to billboards, and whether they are more akin to private newspapers or public shopping centers. Thus, while limited to social media platforms, the Supreme Court’s decision in these cases may very well affect how billboards and their messages are regulated as well.
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