Billboard Insider reported in its March 26th edition on the recent OAAA webinar on the various “Stay at Home” orders issued by several states, counties, and cities, in light of the Covid-19 crisis. The Insider article and OAAA webinar are excellent explanations of the practical challenges and means to navigate them associated with these executive orders, including their application to the out of home industry.

While the State of Texas has not yet issued a state-wide Stay at Home order, several counties across the State have done so, including where I live and work in Harris County and Houston. Like most of these types of orders, a laundry list of businesses and professions providing “essential services” are exempt. For example, “legal professionals providing legally mandated services” are exempt; however, there is no mention of the out of home industry in the Harris County order.

There’s a good constitutional argument that the out of home industry, as communicators of messages protected by the First Amendment, ought to be exempt from Stay at Home orders. Specifically, the extraordinary authority of the States and their political subdivisions, cities and counties, to issue such executive orders under their police power to protect the health, safety, and welfare must be balanced against infringement of constitutional rights. In the last couple weeks in Texas, for example, two important constitutional challenges have been asserted to such orders. First, the Texas Attorney General has officially ruled that the Second Amendment preempts such orders and guarantees the right of gun owners to shop at gun stores, which might have otherwise been forced to close under some of the orders issued throughout the State. Second, and at the opposite end of the political spectrum, Planned Parenthood has sought to enjoin under the constitutional basis in Roe vs Wade the Texas Governor’s declaration that abortions be prohibited, purportedly to guarantee that sufficient medical care be available to those afflicted by the Covid-19 virus.

It follows, therefore, that sign owners and operators have constitutional rights under the First Amendment, especially to convey ideological, social, political, and other non-commercial and emergency messages during a time like this of crisis. Just like gun owners and anti-abortion advocates, the out of home industry can assert their important constitutional rights, and balance them against the obviously important interests of the states, counties, and cities to control the spread and deleterious effects of the Virus.

So far, we at Rothfelder & Falick are doing fine in the Lone Star State, sometimes working remotely, but otherwise continuing full time representation of our clients as an “essential business.” I wish all of you the best of luck, health, and safety through these challenging times.

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