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Fourth Circuit Court Ignores High Court Ruling, Says Billboard Bans Okay in BaltimoreBy Richard T. Kaplar |
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The victory party for 44 Liquormart jolted to an abrupt halt Nov. 13 when
the U.S. Court of Appeals for the Fourth Circuit upheld, on remand, a pair of
Baltimore ordinances banning neighborhood billboards for alcohol and tobacco
products.
The appeals court had been expected to reverse its support of the billboard bans in light of 44 Liquormart, Inc. v. Rhode Island. Instead, the court stuck to its original position in spite of 44. The Fourth Circuit had earlier upheld the billboard bans, but the Supreme Court vacated the judgments and remanded both the alcohol case and the tobacco case to the circuit in light of 44 Liquormart. The Fourth Circuit had affirmed decisions in which a district court deferred to the city government's "reasonable belief" that the bans significantly advanced the government's interest under part three of the Central Hudson test. The Supreme Court made it clear in 44 Liquormart, however, that courts cannot defer to legislators who seek to limit speech on the basis of "speculation and conjecture." Trial courts must make findings of fact based on "evidentiary support" to show that a speech restriction significantly advances a government interest. |
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 Thus, the stage was set for the
Fourth Circuit to reverse its earlier findings. But the court surprised many
observers by downplaying the importance of 44 Liquormart and by claiming
the decision did not apply to the billboard cases.
Indeed, the court made no attempt to justify its refusal, for the second time, to allow plaintiffs any opportunity to conduct discovery or to present their case through an evidentiary proceeding. The Fourth Circuit asserted that the Baltimore bans were merely time, place, and manner restrictions narrowly targeted at children, "who cannot be legal users" of alcohol or tobacco products. The court distinguished these from Rhode Island's "blanket ban" on liquor price advertising, noting that Baltimore was not attempting to restrict advertising in print, broadcast, direct mail, Internet, or other media. The court also contrasted the motives of Rhode Island and Baltimore. Rhode Island sought to ban price advertising out of a "desire to enforce adult temperance through an artificial budgetary constraint," i.e., "substituting a ban on advertising for a ban on the product." Baltimore, on the other hand, sought "to protect children who are not yet independently able to assess the value of the message presented," and was not attempting to ban liquor or tobacco sales to adults. Baltimore's action was in accord with a number of Supreme Court decisions aimed at protecting children from indecency, the court said.
In a sharp dissent, Senior Circuit Judge Butzner said he would have vacated the district court decision and remanded the case to the lower court for an evidentiary hearing. "Without any findings of fact we cannot determine whether the effect (of the billboard bans) will be significant," he said. Absent a factual record, "a reviewing court engages in the type of deferential review that 44 Liquormart deems improper," Judge Butzner concluded. The court published one opinion by Judge Niemeyer in "Anheuser-Busch II" (the case on remand), and said the reasoning applied as well to "Penn Advertising II." Judge Butzner's dissent in Anheuser-Busch II likewise applied to both cases. Penn Advertising and Anheuser-Busch's petitions for rehearing were denied by the Fourth Circuit. Both parties intend to petition the Supreme Court for certiorari. Petitions are due March 10.
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Moreover, the Fourth Circuit
downplayed the precedential value of 44 Liquormart. The court gave
44 a very narrow reading, noting that "the opinion for the Court did not
provide a rationale for its conclusion that the ban violated the First
Amendment, and no opinion addressing the First Amendment violation commanded a
majority of the Court."