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After a long delay, the Fifth Circuit restated its earlier conclusions by the same 2-1 panel majority.

In essence, the majority held that because gambling was a vice, regulation of its advertising was entitled to greater deference under the First Amendment -- a distinction specifically rejected by the Supreme Court in Rubin and 44, and also held that the governmentÕs burden could simply be met by presumptions without actual evidence.

Judge Edith Jones wrote both the earlier and second opinions of the panel and purported to distinguish not just 44 Liquormart but also Rubin, and the Ninth Circuit's squarely contrary result. A clearer example of an explicit doctrinal split among the circuits can scarcely be imagined, and Greater New Orleans petitioned for certiorari.

Tobacco advertising shared the commercial speech spotlight during 1998, and will continue to do so in 1999. Separate articles in this edition discuss cases applying federal preemption to testing billboard ordinances regulating tobacco advertising and discuss the final tobacco settlement with the states. From the First Amendment perspective, the "mixed bag" results of 1998 were sharply etched in the tobacco advertising disputes.

First, there were several non-First Amendment developments:

Brown & Williamson v. FDA. The Fourth Circuit did not address First Amendment arguments presented in the trial court attacking the constitutionality of the FDA's draconian limitations on tobacco advertising, and instead held that Congress had not given the FDA jurisdiction over tobacco and tobacco products. Review on appeal did not reach the district courtÕs decision that the FDA did not have authority over tobacco advertising.

The National Tobacco Debate. The health lobby, the states, the Administration, Congress, and the tobacco companies seemed close to a global settlement in Congress in late spring, but the deal fell apart in Congress. However, the states were unwilling to see the settlement concept die and a so-called "master settlement" was reached last fall. Those limitations on tobacco advertising were less sweeping than either the FDAÕs proposed rules or the restrictions in several earlier bills in the spring round of negotiations in Congress.

Preemption. Several cases in which advertisers or retailers challenged the plethora of local ordinances restricting outdoor tobacco advertising and which were, at least in part, decided under federal preemption analysis.

Some of the tobacco billboard cases also tested the local ordinance under the Central Hudson test, again with inconsistent results:

Lindsey v. Tacoma-Pierce County Health Department. A federal district court in Tacoma upheld a total ban on outdoor tobacco advertising. The court rejected retailer plaintiffsÕ preemption argument and held that the Central Hudson test was met without the need for evidence, because it could simply be presumed under Part 3 that less advertising would certainly reduce illegal underage sales.

The court also held under Part 4 that the total ban "falls within the range allowed by the First Amendment," citing the Baltimore billboard cases. Lindsey is on appeal to the Ninth Circuit.

Rockwood v. City of Burlington. The court first held that the tobacco billboard restrictions in Burlington were preempted by federal law. It continued to hold that the ordinance did not meet Central Hudson, based on a Part 4 analysis that it was more extensive than necessary, citing 44 Liquormart and noting that a clear majority of Supreme Court justices support an enhanced Part 4 test, requiring the election of obvious non-speech alternatives -- here such as "stepped-up law enforcement efforts and public education programs."

Missouri Retailers Association v. City of St. Louis. In contrast, a federal district court in St. Louis upheld that city's restriction on billboard advertising of tobacco products, rejecting both the preemption and First Amendment arguments of the plaintiffs.

As for the latter, the court purported to distinguish 44 Liquormart, holding that the local law was simply a regulation of location and not a "blanket ban" and thus not governed by 44. As usual in all of the cases upholding restrictions on billboard advertising, the district court relied heavily on the Fourth Circuit's decisions in Penn Advertising and Schmoke.

1998 also brought mixed developments in challenges to state and local laws restricting alcohol beverage advertising.

Bad Frog Brewery, Inc. v. New York State Liquor Authority.