Affirmation of Ordinance 288: Balancing Commercial Speech and Public Welfare in Alcohol Advertising

Affirmation of Ordinance 288: Balancing Commercial Speech and Public Welfare in Alcohol Advertising

Introduction

The case of Anheuser-Busch, Inc. v. Schmoke (1995) addresses the constitutional validity of Baltimore City's Ordinance 288, which restricts the placement of stationary, outdoor advertisements for alcoholic beverages in specific parts of the city. The plaintiffs, including major alcohol advertisers Anheuser-Busch and Penn Advertising, challenged the ordinance on the grounds that it violated the First and Fourteenth Amendments' protections of commercial speech. This commentary explores the background of the case, the court's reasoning, and its broader implications for commercial speech regulation.

Summary of the Judgment

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision upholding Baltimore City's Ordinance 288. The ordinance aimed to reduce underage drinking by limiting minors' exposure to alcohol advertising in publicly visible outdoor locations. Applying the four-part Central Hudson test for commercial speech, the court concluded that the ordinance did not violate constitutional protections. The ordinance was deemed a legitimate regulation that directly advanced the city's interest in promoting the welfare of minors and was narrowly tailored to achieve that objective.

Analysis

Precedents Cited

The judgment heavily relied on the Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) decision, which established the four-prong test for evaluating commercial speech restrictions. Other significant precedents include:

  • BIGELOW v. VIRGINIA (1975) - Affirmed that commercial speech has some First Amendment protection.
  • Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976) - Further recognized commercial speech protections.
  • Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) - Supported regulations that reasonably fit governmental objectives.
  • METROMEDIA, INC. v. SAN DIEGO (1981) - Emphasized that the fit between legislative objectives and regulation does not need to be perfect, just reasonable.

These cases collectively underscore the judiciary's approach to balancing commercial interests with public welfare objectives.

Legal Reasoning

Applying the Central Hudson test, the court examined whether the ordinance:

  1. Concerned lawful activity and was not misleading.
  2. Asserted a substantial governmental interest.
  3. Directly advanced the stated interest.
  4. Was narrowly tailored to serve that interest without being more extensive than necessary.

The court found that:

  • The sale and consumption of alcoholic beverages are lawful, and the ordinance did not target misleading advertising.
  • Baltimore had a substantial interest in reducing underage drinking and promoting minors' welfare.
  • The restriction on outdoor advertising directly advanced this interest by limiting minors' exposure to alcohol advertisements.
  • The ordinance was narrowly tailored by exempting commercial and industrial zones, ensuring that the regulation was not more extensive than necessary.

Furthermore, the court dismissed the plaintiffs' argument regarding noncommercial speech, determining that as-applied challenges would require specific enforcement instances, which were not present at the time.

Impact

This judgment reinforces the principle that local governments can regulate commercial speech, such as alcohol advertising, to protect public welfare, particularly that of minors. It establishes that substantial governmental interests can justify restrictions on commercial speech, provided that the regulations are reasonably tailored and directly advance the intended objectives. Future cases involving commercial speech will likely reference this decision when evaluating the balance between regulatory measures and free speech protections.

Complex Concepts Simplified

Commercial Speech
Advertising or other speech by businesses promoting their products or services.
Central Hudson Test
A four-step legal test used to determine whether restrictions on commercial speech violate the First Amendment.
First Amendment
Part of the U.S. Constitution that protects freedoms of speech, religion, press, assembly, and petition.
Fourteenth Amendment
An amendment to the U.S. Constitution that, among other things, provides equal protection under the law and incorporates the Bill of Rights to apply to the states.
Narrowly Tailored
A legal standard requiring that laws or regulations be closely aligned with their intended purpose without being overly broad.

Conclusion

The affirmation of Baltimore City's Ordinance 288 in Anheuser-Busch, Inc. v. Schmoke underscores the judiciary's recognition of the state's authority to regulate commercial speech when it serves substantial public interests, such as protecting minors from the pervasive influence of alcohol advertising. By applying the Central Hudson test, the court balanced free speech rights against the need to promote public welfare, setting a precedent for future cases involving commercial advertising and its regulation. This decision highlights the ongoing interplay between constitutional protections and societal concerns, particularly in areas impacting youth and public health.

Case Details

ANHEUSER-BUSCH, INCORPORATED, PLAINTIFF-APPELLANT, v. KURT L. SCHMOKE, IN HIS OFFICIAL CAPACITY AS MAYOR OF BALTIMORE CITY; MAYOR AND CITY COUNCIL OF BALTIMORE CITY; CITY COUNCIL OF BALTIMORE CITY; DAVID TANNER, IN HIS OFFICIAL CAPACITY AS THE GENERAL SUPERINTENDENT OF ZONING ADMINISTRATION AND ENFORCEMENT, DEFENDANTS-APPELLEES, AND JOHN JOSEPH CURRAN, ATTORNEY GENERAL OF THE STATE OF MARYLAND, IN HIS OFFICIAL CAPACITY, DEFENDANT. THE ASSOCIATION OF NATIONAL ADVERTISERS, INCORPORATED; THE AMERICAN ASSOCIATION OF ADVERTISING AGENCIES; THE MEDIA INSTITUTE; NATIONAL ASSOCIATION OF BROADCASTERS; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION; WASHINGTON LEGAL FOUNDATION; CENTER FOR SCIENCE IN THE PUBLIC INTEREST; COALITION FOR BEAUTIFUL NEIGHBORHOODS; BALTIMORE CITY WIDE LIQUOR COALITION FOR BETTER LAWS AND REGULATIONS, AMICI CURIAE. PENN ADVERTISING OF BALTIMORE, INCORPORATED, PLAINTIFF-APPELLANT,
Year: 1995
Court: United States Court of Appeals, Fourth Circuit.

Judge(s)

Paul Victor Niemeyer

Attorney(S)

ARGUED: John Joseph Walsh, CADWALADER, WICKERSHAM TAFT, New York, New York, for Appellant. Burton Harry Levin, Assistant Solicitor, Baltimore, Maryland, for Appellees. ON BRIEF: Eric M. Rubin, Walter E. Diercks, Jeffrey Harris, RUBIN, WINSTON, DIERCKS, HARRIS COOKE, Washington, D.C.; Thomas M. Wood, IV, NEUBERGER, QUINN, GIELEN, RUBIN GIBBER, P.A., Baltimore, Maryland; P. Cameron DeVore, DAVIS, WRIGHT, TREMAINE, Seattle, Washington, for Appellant. Neal M. Janey, City Solicitor, Sandra R. Gutman, Associate Solicitor, DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. Richard E. Wiley, Lawrence W. Secrest, III, Daniel E. Troy, Luis de la Torre, Frank Winston, Jr., WILEY, REIN FIELDING, Washington, D.C., for Amici Curiae American Advertising Federation, et al. Mark S. Yurick, Senior Assistant City Solicitor, OFFICE OF THE CITY SOLICITOR, Cincinnati, Ohio, for Amicus Curiae City of Cincinnati. Daniel J. Popeo, David A. Price, WASHINGTON LEGAL FOUNDATION, Washington, D.C., for Amicus Curiae Washington Legal Foundation. Donald Garner, Professor of Law, SOUTHERN ILLINOIS UNIVERSITY, Carbondale, Illinois; THE MARYLAND CONGRESS OF PARENTS TEACHERS, INC., Baltimore, Maryland, for Amicus Curiae Maryland Congress. Christopher J. Fritz, Julie Ellen Squire, Thomas C. Dame, GALLAGHER, EVELIUS JONES, Baltimore, Maryland, for Amici Curiae Coalition for Beautiful Neighborhoods, et al. Louise H. Renne, City Attorney, Dannis Aftergut, Chief Assistant City Attorney, Barbara Solomon, Deputy City Attorney, John Cooper, Deputy City Attorney, San Francisco, California, for Amicus Curiae San Francisco; Joan Gallo, City Attorney, George Rios, Assistant City Attorney, San Jose, California, for Amicus Curiae San Jose. George Hacker, CENTER FOR SCIENCE IN THE PUBLIC INTEREST, Washington, D.C., for Amicus Curiae Center for Science.

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