Court's Refusal To Hear Baltimore Billboard Appeals Sparks Flurry of New Restrictions

By Richard T. Kaplar

The Supreme Court's decision April 28 to deny certiorari in two Baltimore billboard cases has left many commercial speech observers scratching their heads, and has emboldened state and local governments around the country to launch a host of new billboard restrictions.

The Court surprised observers by declining to hear appeals on the Anheuser-Busch and Penn Advertising cases, which deal with alcohol and tobacco billboards respectively.

Last year the Supreme Court had vacated the Fourth Circuit's judgment upholding the Baltimore bans and had remanded the cases to that appeals court in light of the Supreme Court's 44 Liquormart decision.

The Fourth Circuit had been expected to reverse its ruling and declare the bans unconstitutional in the wake of 44, but instead gave 44 a very narrow reading and reaffirmed its decision upholding the billboard bans.

The stage was thus set for the case to go back to the Supreme Court. Observers saw that move as an opportunity for the Court to restate the significant protection it had afforded commercial speech in 44 Liquormart, including the requirement that speech restrictions be based on a factual record documenting their likely effect.

What happened?

No one outside the Court knows for sure, but speculation abounds. Possible reasons for denying cert. include:

• The Court's commercial speech doctrine is still in flux, and the Court is unwilling to clarify its position further at this time.

• There was no circuit split, i.e., the Supreme Court did not need to resolve contradictory decisions by different appeals courts.

• The Court may prefer to wait for a pro-44 Liquormart decision from another circuit and then resolve the split with the Fourth Circuit.

• The Supreme Court is "not a court of error" that must correct the mistakes of lower courts.

• The Court has already taken a disproportionate number of commercial speech cases (including the pending Wileman Brothers) and should not be expected to take a commercial speech case every term.

Despite the Court's denial of cert., however, the fact remains that 44 Liquormart is still the commercial speech law of the land, particularly as it reaffirms the four-part Central Hudson test.

Contrary to the wishful thinking of pro-regulatory forces, denial of cert. does not mean the Supreme Court upheld the Baltimore billboard bans -- it merely refused to hear the appeal.

Likewise, denial of cert. does not mean the Court is backtracking on 44 Liquormart's strong support for commercial speech, or that the Court is tacitly resurrecting its holdings in the Posadas Puerto Rico casino advertising case.

In light of the Supreme Court's action, however, cities and states are declaring open season on tobacco and alcohol billboards. New York City, Los Angeles, Cleveland, Texas, Michigan, and Minnesota are among the locales where restrictions have already been proposed.

"So far we have seen as many as 40 proposals in different stages and we expect more to come," said Linda Dove, vice president of the American Association of Advertising Agencies.

The Court's denial of cert. is likely to have an impact well beyond billboards. FCC Chairman Reed Hundt, for example, had already been taking an expansive view of the Baltimore situation as a precedent for banning liquor advertising on television:

"Surely [Anheuser-Busch] means that the First Amendment is in no way violated by a prohibition on advertising hard liquor on shows and in time slots when kids are likely to be in the audience in large numbers -- that applies, like it or not, to very late hours," Hundt told the Association of National Advertisers.

Anheuser-Busch, Inc. v. Mayor and City Council, 63 F.3d 1305 (4th Cir. 1995), vacated and remanded sub nom.Anheuser-Busch, Inc. v. Schmoke, 116 S. Ct. 1821 (1996), reaff¹d, 101 F.3d 325 (4th Cir. 1996), cert. denied, 1997 U.S. LEXIS ____ (April 28, 1997).

44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).

Glickman v. Wileman Bros. & Elliott, Inc., 58 F.3d 1367 (9th Cir. 1995), __ U.S. __ (No. 95-1184).

Penn Advertising of Baltimore, Inc. v. Mayor and City Council, 63 F.3d 1318 (4th Cir. 1995), vacated and remanded sub nom.Penn Advertising of Baltimore, Inc. v. Schmoke, 116 S. Ct. 2575 (1996), reaff'd, 101 F.3d 332 (4th Cir. 1996), cert. denied, 1997 U.S. LEXIS 2792 (April 28, 1997).

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986).