• by Wendy Davis , Staff Writer @wendyndavis, April 16, 2020

Faced with a spike in COVID-19 infections, Michigan Governor Gretchen Whitmer recently issued one of the broadest stay-at-home mandates in the country.

Her order, issued last Thursday and set to expire at the end of the month, requires residents to remain home except for “essential” purposes. It also restricts businesses' ability to sell and advertise non-essential items.

Among other provisions, the mandate requires stores larger than 50,000 square feet to close aisles that sell certain home goods -- including furniture, carpets, plants and paint. Customers can still purchase those goods from big-box stores online, or arrange for curbside pick-up.

The order also prohibits stores larger than 50,000 square feet from advertising or promoting anything other than “groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences."

The Association of National Advertisers protested the order the same day it was issued.

On Thursday, the Interactive Advertising Bureau, American Association of Advertising Agencies, American Advertising Federation,  and Network Advertising Initiative joined the ANA in urging Whitmer to revoke the ban, arguing that it violates the First Amendment. 

“A section of the Governor's recent executive order damages Michigan's advertising industry by prohibiting lawful speech, while providing no benefit to public safety, so we urge the Governor to rescind that section immediately,” the groups write in a joint statement.

They add that the restrictions could harm media outlets by eliminating at least some of their ad revenue.

“Advertising provides revenue to support both news organizations and digital services, including the massive public service campaigns that are educating Michigan residents about how to protect themselves from COVID-19,” the groups write. “Policymakers should support that financial model, rather than undermining it.”

Whitmer's broad order has sparked protests, and is facing at least two legal challenges -- although neither focuses specifically on the ad ban.

Should the ad ban be challenged, Whitmer would likely face an uphill battle, according to Jeff Greenbaum, a partner at Frankfurt Kurnit Klein & Selz.

“There are very, very serious questions about the constitutionality of this type of ad ban,” he says.

“The First Amendment protects commercial speech,” he adds. “And the government can't -- without a very, very good reason, and without choosing appropriate means -- restrict the ability of advertisers to advertise.”

One problem is there's no readily apparent reason for prohibiting stores from advertising non-essentials, but allowing stores to sell the same products online or for curbside pick-up, Greenbaum says. He adds that it's unclear why the order only applies to large stores.

Santa Clara University law professor Eric Goldman adds that the restriction on large stores, but not smaller ones or online vendors, “seems quite capricious.”

“I would love to see a very detailed explanation for how that particular configuration of a regulation solves a problem,” he says. “And if it doesn't, it might very well be unconstitutional.”