Readers will remember that the same directive issued from the Supreme Court on the cert. petition filed in Anheuser-Busch v. Schmoke (the Baltimore billboard case), and that the Fourth Circuit, on remand, found no teaching in 44 Liquormart applicable to its decision and upheld the ordinance.
In the decision filed July 30, 1998, again with a majority opinion authored by Judge Jones, the equivalent result was reached in GNOBA II with Chief Judge Politz continuing to dissent.
In GNOBA I, Judge Jones had been sharply critical of the Supreme Court's Rubin v. Coors decision, which affirmed that restrictions on commercial speech about legal activities in the so-called "vice" category are reviewed under the Central Hudson standard and not by a more deferential approach. After noting with approval a statement in United States v. Edge that "advertising of gambling can lay no greater claim on constitutional protection than the underlying activity" (citing Posadas), Judge Jones lamented that in Rubin, the Court "distanced itself" from this position.
Clinging to Edge, again rejecting Rubin v. Coors, and also now the Ninth Circuitıs application of Rubin in Valley Broadcasting to invalidate the same statute, Judge Jones ended up in 1998 exactly where she started in 1996: allowing the governmentıs Part 3 ³proof² to consist of the same so-called ³commonsense² presumptions, without a shred of supporting evidence.
As to Part 4, the majority opinion recognized that 44 Liquormart was "more demanding" but found that the new test was not "insurmountable" then ruled that the government had surmounted it. Distinguishing 44 Liquormart as a blanket ban case with no alternative channels available to alcohol beverage advertisers, Judge Jones found the broadcast ban ³more analogous to a time, place, and manner restriction,² pointing to the availability of other media.
In a remarkable concluding section, all the more so because of her recognition that 44 Liquormart had discredited Posadas-type legislative deference, Judge Jones posited that the absence of a federal restriction on casino advertising would become the equivalent of federal approval of "an activity that is again coming to be viewed with moral and utilitarian suspicion ...." Judge Jones then inveighed against the Supreme Court's steady trend toward enhanced protection of all commercial speech including the so-called "vice" categories, calling again for deference to legislative judgments in reviewing restrictions on casino advertising:
