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Winter 1999 |
11 |
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hear your conclusion, the panel members have to reconstruct the evidence they heard earlier and figure out if it supports your conclusion. Most panel members donŐt have time for mental gymnastics. So give them the conclusion first and then support it. If they question the conclusion, they will listen to the evidence. If they accept the conclusion, the evidence will reinforce their belief. Finally, use rhetorical questions to guide the thinking of panel members. This technique is common among trial lawyers and great public speakers going back to Demosthenes. Since the Central Hudson test can be confusing, reducing it to a set of questions often helps panel members understand your point. I've edited the following section of my testimony to illustrate this technique: "Allow me to demonstrate how the current constitutional tests apply to the proposed ordinances. (1) Is the advertising in question misleading or concerned with an illegal product? (2) Is the government interest compelling and/or substantial? (3) Does the banning of billboard advertising directly advance the asserted government interest? (4) Is there a reasonable fit between the ordinances' goals and method?" In the world of commission appearances, you don't even get your 15 minutes of fame. You are lucky to get five. So it is important that you make the most of them. If you have the best evidence and the best arguments in the world, they will do you no good if they are misperceived by your target audience. Thus, understanding the rhetorical as well as the legal environment is the key to an effective presentation. Billboard Preemption... « from page 4 or prohibitions specifically related to smoking and health." Judge Webber found additional support for his analysis in the legislative history of the FCLAA which, he concluded, extends only "to health-related advertising": "There is no indication in FCLAA or its legislative history that Congress intended to preempt any and all state action ... which is undergirded by legislative convictions about the relationship between smoking and health." So, clear lines have been drawn and basic questions raised and answered in diametrically opposing ways. Under federal preemption principles as applied to the FCLAA, does the intent or motive of the legislative body enter into the analysis? If so, does it make a difference if the intent or motive is expressed in the local law, or only in its legislative history, or not at all, if "health" underlies the legality of tobacco sales in some way? Do geographic area restrictions on display of tobacco advertising, without more, constitute conditions that negatively impact such advertising in a way Congress meant to proscribe? To be preempted, must a local restriction impose a condition or relieve a burden based on smoking and health? The next round of decisions and answers to such questions should emerge from the Second, Seventh, Eighth, and Ninth Circuits. If the district court experience is any measure, these appellate decisions will provide a conflict among the circuits that should prompt the Supreme Court to answer at least some of these questions. While the authors believe Vango Media performed the preemption analysis correctly, we are not making any predictions about the eventual outcome. We are concerned that the "location only / not content" analysis has been all too frequently, and we think erroneously, carried over into the First Amendment issues raised by these challenges as a basis for finding no violation of commercial speech rights. |
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