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Mixed Bag continued 1999: The New Year Pivotal to commercial speech developments this year will be the action of the Supreme Court in GNOBA. The Court granted certiorari on Jan. 15, 1999, and established an accelerated briefing schedule. The brief of the solicitor general is to filed on or before Feb. 25, the brief of respondent on or before March 24, and the reply brief on or before April 12. This virtually ensures that oral argument will be heard in GNOBA and an opinion issued before the end of the term. Not only will the Court resolve the conflict between the Fifth and Ninth Circuits - GNOBA and Valley Broadcasting - but the case presents a unique opportunity for the Court to provide even clearer guidance about the government's burden of proof in supporting commercial speech restrictions. The clear message of the Court's commercial speech decisions of the 1990s has been to ratchet upward the burden under Central Hudson Part 3 ("direct and material advancement") and Part 4 ("no more extensive than necessary" - a requirement that "reasonable and obvious" alternatives to speech restriction be chosen). Indeed, GNOBA provides an opportunity for the Supreme Court to continue the apparent debate reflected in the opinions in 44 Liquormart as to whether the Central Hudson test remains a viable vehicle, or whether the Court would consider adopting either Justice Thomas's suggestion that commercial speech receive full strict scrutiny under the First Amendment, or Justice Stevens's suggestion (also in 44 Liquormart) that stricter scrutiny be applied in all commercial speech cases, except for those that involve misleading speech or other speech that undercuts the fairness of the commercial marketplace. There will, of course, be other developments during the year. For example, argument and a decision can be expected in the Lindsey case in the Ninth Circuit, as discussed above, and in other commercial speech appeals. It is also anticipated that there will be new challenges to the still-growing number of municipal billboard restrictions against tobacco and alcohol beverage advertising. P. Cameron DeVore, a partner in the Seattle office of Davis Wright Tremaine, is Chair of the firmÕs Communications and Media Law Department. He regularly represents the media and national advertisers in major First Amendment cases in the U.S. Supreme Court, and federal and state trial and appellate courts. Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995). 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996). Central Hudson Gas & Elec. Corp. v. Public Serv. CommÕn, 447 U.S. 557 (1980). Valley Broadcasting v. United States, 107 F.3d 1328 (9th Cir. 1997). Players IntÕl, Inc. v. United States, 988 F. Supp. 497, 506 (D.N.J. 1997). Greater New Orleans Broadcasting AssÕn v. United States, 149 F.3d 334 (5th Cir. 1998). Brown & Williamson v. FDA, 153 F.3d 155 (4th Cir. 1998). Lindsey v. Tacoma - Pierce County Health Dept., 8 F. Supp.2d 1213 (W.D. Wash. 1997). Penn Advertising v. Mayor and City Council, 63 F.3d 1318 (4th Cir. 1995), vacated and remanded, 518 U.S. 1030 (1996), readopted, 101 F.3d 332 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997). Anheuser-Busch, Inc. v. Mayor and City Council, 63 F.3d 1305 (4th Cir. 1995), vacated and remanded, 517 U.S. 1206 (1996), readopted, 101 F.3d 325 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997). Rockwood v. City of Burlington, 21 F. Supp.2d 411 (D. Vt. 1998). Missouri Retailers v. City of St. Louis, Case No. 4:98CV01514 ERW (E.D. Mo. Dec. 10, 1998). Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998). Eller Media Co. v. City of Oakland, __ F. Supp.2d __, No. C98-2237 FMS, 1998 U.S. Dist. WESTLAW 827426 (N.D. Cal. Nov. 25, 1998). Pearson v. Edgar, No. 97-2667, 1998 U.S. Dist. LEXIS 18260 (7th Cir. Aug. 7, 1998). United Reporting Publishing Corp. v. California Highway Patrol, 146 F.3d 1133 (9th Cir. 1998). return to first page of this article Continue with next article

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