Billboard Insider recently brought to my attention a controversial issue involving Oakland’s ordinance designed to regulate and permit firearms, and how it may run afoul of a billboard operator’s right to free speech. The ordinance passed in 1992 states that any person “engaged in the business” of selling or advertising guns or ammunition must first obtain a permit from the Chief of the Oakland Police Department. Outfront Media owns and operates a billboard adjacent to I 880 in Oakland advertising the Mete MC9, a California compliant handgun from Turkish firearms manufacturer Canik. While no permits nor citations have apparently been issued, Oakland’s Public Information Officer suggested that the billboard is subject to the City’s regulation, and that an annual permit costing $874 could be required. OUTFRONT subsequently removed the firearms ad from the billboard.
For commercial speech to come within [First Amendment] protection, it at least must concern lawful activity and not be misleading. Next we ask whether the asserted governmental interest in substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
In this case, not only is the firearm advertised on the billboard a legal product, the Second Amendment guarantees citizens the right to own and bear them. Moreover, the imposition of a substantial annual permit for the selected legal product, namely firearms, while charging no permit fees for the laundry list of other goods and services advertised on billboards smacks of illegal viewpoint discrimination. Thus, while municipalities may legally charge permit fees to recoup their cost of reasonable regulations, it’s hard to reconcile doing so in this context when the regulated product is legal and constitutionally protected.
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