Michigan governor bans certain advertisements during COVID-19 pandemic, later backs down on First Amendment grounds

On April 9, 2020, Michigan Gov. Gretchen Whitmer (D) issued an executive order extending the state’s lockdown measures in response to the coronavirus pandemic. Included in the executive order was a ban on big-box retailers advertising nonessential items during the pandemic. On the same day the order was issued, major ad groups issued a joint statement urging Whitmer to revoke the ban on First Amendment grounds, the Digital News Daily reported. Whitmer backed down later that month and withdrew the ban on the advertisements. 

Key Players

Gretchen Whitmer, who became governor of Michigan in 2019, has been outspoken about her belief that Americans should listen to medical professionals for information on the COVID-19 pandemic. Large groups of Michiganders have protested publicly against Whitmer’s lockdown measures, and the governor has also received sharp criticism from President Donald Trump, according to the Daily Beast. 

Major ad industry groups, including the Association of National Advertisers, Interactive Advertising Bureau, American Association of Advertising Agencies, American Advertising Federation, and Network Advertising Initiative, joined together to urge Whitmer to rescind the advertisement ban, claiming it violated the First Amendment. The five groups are among the largest advertising trade associations in the United States, according to DBusiness, a Detroit-based business journal.

Further Details

By the time Whitmer issued the state’s first stay-at-home order on March 23, Michigan had already seen “deaths in the hundreds, confirmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions,” according to the April 9 executive order that extended the lockdown until April 30. 

NBC News described Whitmer’s lockdown policy as one of the strictest in the country: “Michiganders won’t be allowed to travel to in-state vacation residences. They are not permitted to use a motor boat. Business restrictions have been tightened, including that large stores must close areas ‘dedicated to carpeting, flooring, furniture, garden centers, plant nurseries, or paint,’ among other measures.” The order was poorly received among Michigan businesses and residents who thought it too restrictive, resulting in, as of May 14, three armed protests at the State Capitol building in Lansing, NPR reports.

The trade associations that sent the letter to Whitmer represented a vocal coalition of those aggrieved businesses. Specifically, they were concerned with sections of the order that prohibit two groups — property owners and large retailers — from “the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences,” according to AdAge. The advertisement ban, per the letter drafted by the organizations, “damages Michigan’s advertising industry by prohibiting lawful speech, while providing no benefit to public safety,” DBusiness reports.

Under the U.S. Constitution, states hold the power to prohibit advertising, but they first must prove “substantial interest” in doing so, according to Dan Jaffe, head of government relations at the Association of National Advertisers. Jaffe told AdAge that a major contention of the groups was that small stores had been allowed to advertise while large retailers faced bans. “[The advertising groups agree] with the Governor that people need to be protected, but … [they] don’t want restrictions on advertising,” Jaffe said. “It might just increase issues [they are] facing economically.” 

Outcome

Governor issues updated executive order allowing big-box retailers to resume advertisements

On April 24, 2020, Whitmer issued an updated executive order, extending the state’s stay-at-home protocol through May 15. Whitmer’s updated order revoked the ban on the advertisement of nonessential items and allowed some businesses previously considered nonessential, such as those selling gardening supplies, to reopen, Digital News Daily reports. 

Whitmer extended Michigan’s stay-at-home order beyond May 15, and again on May 22, this time until June 12. As a result, venues such as theaters, gyms, and casinos were to remain shuttered, according to The Hill. The extension came a day after Whitmer began relaxing certain other restrictions, allowing social gatherings of 10 or fewer people and permitting retail businesses to reopen to customers for appointment-only shopping.