It seems like everyday there’s a new mass shooting, whether its Uvalde, Buffalo, Parkland, Sandy Hook, and on and on. And, just as predictably, there’s more and more talk about gun control legislation.  Especially in these tragic times, everybody appears to have an opinion under the Fourth Amendment, namely whether the Constitutional right to own and bear arms can be curtailed by the Government’s intervention into firearm regulation.

These massacres have directly impacted rights under the First Amendment as well, including for the billboard industry. I and other authors have previously written in Billboard Insider and other publications on the right of billboard operators to display, or in this case, refuse to display advertisements on their billboards. In general, the operator has a right under the First Amendment to refuse to display ads on his privately owned billboards located on private property, even if he simply disagrees with the political or social message proposed for the sign.

The Texas Legislature, however, passed a statute last year that may override the billboard operator’s Free Speech rights. Specifically, Senate Bill 19 became effective September 1, 2021, and it prohibits a for-profit entity with at least 10 employees from “discriminating” against the firearms industry, or risk forfeiting any commercial contracts with the State. Under the law, this means that the entity can’t “refuse to engage in the trade of any goods or services … based solely on its status as a firearm entity.” Further, the State is prohibited from entering contracts valued at $100,000 or more with such entities “for the purchase of goods or services unless the contract contains a written verification from the company that it” does not so discriminate.

When applying this statute to the outdoor advertising industry, one could certainly imagine the situation arising where the billboard owner was presented with the proposal from a gun manufacturer or distributor for displaying an advertisement for the sale of firearms on his billboard. If the billboard company had at least 10 employees, it appears this law would require the operator to display the ads. Or, at least such a company would need to recognize that the failure to do so would potentially result in the forfeiture of any contracts he might have with the State valued at more than $100,000, such as a separate ad campaign against littering, speeding, or texting on the Texas highways.

Reasonable minds can differ on the hotly debated issue of gun control, and whether it’s reasonable regulation or Fourth Amendment violations. However, most in the communications business, including in the out of home industry, would probably agree that the First Amendment should prohibit the Government from dictating what private operators are compelled to communicate on their billboards on the topic.  Stay tuned for the inevitable legal challenges to this statute.

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