The Feds Are Coming! The Feds Are Coming! Justice Dept. Blesses Baltimore Ad BanBy John J. Walsh, Esq. and Steven G. Brody, Esq. | |
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In a highly unusual move, the U.S. Department of Justice has jumped into the Baltimore billboard fray, filing an amicus brief with the Fourth Circuit strongly supporting Baltimore's ban on tobacco billboard advertising.
The case, Penn Advertising v. Schmoke, was remanded to the circuit May 20 by the Supreme Court in light of its 44 Liquormart ruling. The Court vacated the circuit's decision upholding the billboard ban. What was surprising, at least initially, was the amicus brief filed by the United States in support of Baltimore's position. The brief marks the Clinton Administration's first direct involvement in the Baltimore case and comes unusually late in that game. The Justice Dept. filed the brief July 17, just three weeks before the Administration unveiled its final rule for FDA regulation of tobacco advertising.
On reflection, the United States's Penn maneuver is much less surprising. The brief evidences a coordinated strategy to persuade the Fourth Circuit that 44 Liquormart made no changes in the Central Hudson landscape that should affect the court's eventual review of two cases the United States is currently defending -- challenges mounted by tobacco companies and advertisers to the severe restrictions on tobacco advertising promulgated by FDA. Justice did not file a brief in Anheuser-Busch, the companion case about alcohol beverage billboards, further suggesting that the Administration' s strategy is tightly focused on buttressing its FDA regulatory scheme for tobacco. In its statement of interest, the DOJ brief mentions the FDA rule making and other federal statutes that regulate tobacco advertising. But its positioning for the future review of the cases challenging the FDA restrictions now pending in a district court in North Carolina (in the Fourth Circuit) is most evident, indeed blatantly evident, in footnote 5 to its brief: Because the United States does not believe that 44 Liquormart requires a further evidentiary showing to support the Baltimore ordinance under the third prong of Central Hudson, we do not address the record in this case. We note that the FDA's current tobacco rulemaking proceeding. . . has produced an extraordinarily extensive administrative record. If, contrary to our submission above, it were necessary for First Amendment purposes to assess the factual basis for any restrictions on cigarette advertising that might be adopted by the FDA, judicial review would be conducted on the basis of this exhaustive administrative record and the agency's considered judgments on that record. In proposing, at most, an administrative agency review standard for the FDA cases pending in the Middle District of North Carolina, DOJ is both telegraphing from previous page its legal analysis for those cases and seeking a ruling from the Fourth Circuit in the "first to arrive" Baltimore cases that will not undermine that analysis. Justice is, in essence, asking the Fourth Circuit to once again defer to the "rulemakers" (the Baltimore city council and mayor) on the basis of a belief that they are acting "reasonably" on the self-serving record they assembled. But 44 Liquormart instructed the First Circuit and all would-be regulators of advertising that deference and reasonableness are not the tests. Rather, the government must prove by a preponderance of evidence that the restriction will advance its goal in a direct and material way, and that the restriction is no more extensive than necessary. The challenging party must have the right to refute that evidence, to cross examine witnesses, and to take discovery to prepare for those elemental courtroom tasks, so that when the court commences its independent review of the evidence, it has more to go on than a unilaterally created record. A number of years ago, a popular cartoon showed a man seated en commode reading some papers under the caption: "The only man in Washington who knows what he is doing." Somewhere in the recesses of the Clinton Administration there must be several people who give the lie to the cartoon. They have correctly anticipated that the Baltimore cases, in the wake of 44 Liquormart, represent a threat to the trial-less world in which they would like to have courts review federal curbs on advertising, whether they come from the FDA, the FCC, the BATF, the Department of Agriculture, or wherever federal censorship is the selected method to support some federal goal. They know what they are doing. One can hope that the Fourth Circuit has observed and will disapprove of DOJ's transparent attempt to argue a standard of review for other cases that have not yet arrived before that court. John J. Walsh and Steven G. Brody are partners in the firm of Cadwalader, Wickersham & Taft in New York. Messrs. Walsh and Brody represent Anheuser-Busch in one of the Baltimore cases. |
Baltimore Billboards:
In both Penn Advertising and the related case of Anheuser-Busch v. Schmoke, Baltimore had received decisions from the U.S. District Court and the Fourth Circuit upholding companion ordinances banning "publicly visible" advertising of cigarettes and alcohol beverages.
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