the ordinance to such advertising is determined by the message the ads express.

(2) The purpose of these restrictions is to remove or reduce the primary effect of such advertising  whatever influence the advertising may have on the viewer. There is no Renton-like set of secondary effects, and deference to a legislature's reliance on Renton in an advertising case would be entirely misplaced.

(3) Legislative bodies, particularly local governments, have no "expertise" in determining the purposes of advertising or in predicting or detecting the effects of particular types of advertising. Thus, deference to legislative judgments about the purposes and effects of advertising is likewise completely misplaced.

(4) Where a legislative body has relied on studies or other empirical evidence about the banned advertising, the reviewing court in a commercial speech case has a more substantial role than finding such effort to be reasonable and a justification for the ban.

The government must present its evidence in court when challenged, and demonstrate that the problem it seeks to alleviate is real and that the means it has adopted will directly and materially advance its goal.

This is required by the First Amendment because, unlike O'Brien and Kandyland, commercial speech cases involve direct suppression of the expressive content of advertising  its message to the consuming public. There is nothing "incidental" or "secondary" about it.

(5) When commercial advertising is removed from a city or other locality, its message is gone completely. There is no "pasties and Gstring" alternative to communicate some measure of the banned expression.

Two additional points are worth noting about Kandyland. First is the significance of Justice Souter's call for empirical evidence in his dissent in a "secondary effects" case. This highlights the importance in commercial speech cases (where content is involved) of judicial insistence that government prove in court the reality of the harm it seeks to alleviate, the effectiveness of its cure, and the narrow effect on speech of its chosen remedy. This includes the lack of curative alternatives that don't affect, or have a lesser impact on, speech.

One hopes that the members of the plurality in Kandyland bear this in mind if and when they are faced with an argument that Renton and Kandyland dictate how to apply intermediate scrutiny in a commercial speech case.

Second, Justice Stevens has been the most articulate advocate for enhanced protection of commercial speech on the Court in recent years. His concern in Kandyland is that a Renton-type result was acceptable to the plurality under First Amendment principles, even though Renton and other cases like Young v. American Mini Theaters were cases in which only the location of the expressive activity was regulated. However, Erie's ban was total, not locational.

Given the recent tendency of local governments to argue in commercial speech cases that only the location of outdoor advertising is involved in their restrictions, it seems that Justice Stevens maybe be ringing an early alarm bell here.

He points out that "[o]rdinarily laws regulating the primary effects of speech, i.e., the intended persuasive effects caused by the speech, are presumptively invalid." He decries the plurality's approach to a "total ban" based on "secondary effects."

While he may be willing to go along with alleviation of secondary effects in O'Brien-type cases by control of location, Justice Stevens clearly argues that alleviation of secondary effects can never be used in justification where a content-based ban or restriction  one designed to remove the persuasive effects of speech  is challenged.

The judiciary must be wary of the shell game practiced by governments that argue that they are only exercising "zoning power" to determine where "harmful advertising may be located." Attempts to justify advertising bans on the basis of location or secondary effects should be recognized as completely inapposite because these bans are triggered solely by expression  their content.

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John J. Walsh is Senior Counsel at Carter, Ledyard & Milburn in New York City.

Barnes v. Glen Theater, 501 U.S. 560 (1991).

Edenfield v. Fane, 507 U.S. 761 (1993).

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

Greater New Orleans Broadcasting Ass'n v. United States, 119 S. Ct. 1923 (1999).