63 F.3d 1305 (4th Cir. 1995), 94-1431, Anheuser-Busch, Inc. v. Schmoke

Docket Nº:94-1431, 94-1432.
Citation:63 F.3d 1305
Party Name:ANHEUSER-BUSCH, INCORPORATED, Plaintiff-Appellant, v. Kurt L. SCHMOKE, in his official capacity as Mayor of Baltimore City; Mayor and City Council of Baltimore City; City Council of Baltimore City; David Tanner, in his official capacity as the General Superintendent of Zoning Administration and Enforcement, Defendants-Appellees, and John Joseph Cur
Case Date:August 31, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

Page 1305

63 F.3d 1305 (4th Cir. 1995)

ANHEUSER-BUSCH, INCORPORATED, Plaintiff-Appellant,

v.

Kurt L. SCHMOKE, in his official capacity as Mayor of

Baltimore City; Mayor and City Council of Baltimore City;

City Council of Baltimore City; David Tanner, in his

official capacity as the General Superintendent of Zoning

Administration and Enforcement, Defendants-Appellees,

and

John Joseph Curran, Attorney General of the State of

Maryland, in his official capacity, Defendant.

The Association of National Advertisers, Incorporated; the

American Association of Advertising Agencies; the Media

Institute; National Association of Broadcasters; the

Thomas Jefferson Center for the Protection of Free

Expression; Washington Legal Foundation; Center for

Science in the Public Interest; Coalition for Beautiful

Neighborhoods; Baltimore City Wide Liquor Coalition for

Better Laws and Regulations, Amici Curiae.

PENN ADVERTISING OF BALTIMORE, INCORPORATED, Plaintiff-Appellant,

v.

John Joseph CURRAN, Attorney General of the State of

Maryland, in his official capacity, Defendant.

The Association of National Advertisers, Incorporated; the

American Association of Advertising Agencies; the Media

Institute; National Association of Broadcasters; the

Thomas Jefferson Center for the Protection of Free

Expression; Washington Legal Foundation; Center for

Science in the Public Interest; Coalition for Beautiful

Neighborhoods; Baltimore City Wide Liquor Coalition for

Better Laws and Regulations, Amici Curiae.

Nos. 94-1431, 94-1432.

United States Court of Appeals, Fourth Circuit

August 31, 1995

Argued March 6, 1995.

Page 1306

[Copyrighted Material Omitted]

Page 1307

ARGUED: John Joseph Walsh, Cadwalader, Wickersham & Taft, New York City, for appellant. Burton Harry Levin, Assistant Solicitor, Baltimore, MD, for appellees. ON BRIEF: Eric M. Rubin, Walter E. Diercks, Jeffrey Harris, Rubin, Winston, Diercks, Harris & Cooke, Washington, DC, for appellant. Neal M. Janey, City Solicitor, Sandra

Page 1308

R. Gutman, Associate Solicitor, Department of Law, Baltimore, MD, for appellees. Richard E. Wiley, Lawrence W. Secrest, III, Daniel E. Troy, Luis de la Torre, Frank Winston, Jr., Wiley, Rein & Fielding, Washington, DC, for amici curiae American Advertising Federation, et al. Mark S. Yurick, Senior Assistant City Solicitor, Office of The City Solicitor, Cincinnati, OH, for amicus curiae City of Cincinnati. Daniel J. Popeo, David A. Price, Washington Legal Foundation, Washington, DC, for amicus curiae Washington Legal Foundation. Donald Garner, Professor of Law, Southern Illinois University, Carbondale, IL; The Maryland Congress of Parents & Teachers, Inc., Baltimore, MD, for amicus curiae Maryland Congress. Christopher J. Fritz, Julie Ellen Squire, Thomas C. Dame, Gallagher, Evelius & Jones, Baltimore, MD, for amici curiae Coalition for Beautiful Neighborhoods, et al. Louise H. Renne, City Attorney, Dannis Aftergut, Chief Assistant City Attorney, Barbara Solomon, Deputy City Attorney, John Cooper, Deputy City Attorney, San Francisco, CA, for amicus curiae San Francisco; Joan Gallo, City Attorney, George Rios, Assistant City Attorney, San Jose, California, for amicus curiae San Jose. George Hacker, Center for Science in the Public Interest, Washington, DC, for amicus curiae Center for Science.

Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge HAMILTON and Senior Judge BUTZNER joined.

OPINION

NIEMEYER, Circuit Judge:

We decide in this case whether Ordinance 288 enacted by the Mayor and City Council of Baltimore, Maryland, prohibiting the placement of stationary, outdoor "advertising that advertises alcoholic beverages" in certain areas of the City, violates the First and Fourteenth Amendment protections of commercial speech. The district court concluded, after applying the four-part test for evaluating commercial speech announced in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), that the ordinance did not violate the Constitution, 1 and we now affirm.

I

Under Maryland law, it is illegal to sell any alcoholic beverage to, or to obtain any alcoholic beverage for, a person under 21 years of age. It is also illegal for a person under 21 years of age to obtain, possess, or control an alcoholic beverage. Md.Code, Art. 27, Secs. 400-403A. To advance the state's interest in those prohibitions and to promote "the welfare and temperance of minors exposed to advertisements for alcoholic beverages," the Maryland legislature authorized the Mayor and City Council of Baltimore (collectively "Baltimore") to adopt an ordinance restricting the placement of signs that advertise alcoholic beverages in "publicly visible locations," i.e. on "outdoor billboards, sides of buildings, and freestanding signboards." Md.Code, Art. 2B, Sec. 222. The authorization, however, contains 10 limitations which prohibit Baltimore from restricting such advertising on, for example, buses, taxicabs, commercial vehicles used in the transportation of alcoholic beverages, and signs at businesses licensed to sell alcoholic beverages, including professional sports stadiums.

In January 1994, Baltimore exercised the authority granted it by the State and enacted Ordinance 288 prohibiting the outdoor advertising of alcoholic beverages in certain locations in Baltimore City. 2 The prohibition in

Page 1309

the ordinance is subject to the same 10 exceptions specified in the State's authorizing statute, and it also includes an exception permitting such advertising in certain commercially and industrially zoned areas of the City. By its terms, the ordinance was to become effective February 5, 1994.

Before enacting the ordinance, the Baltimore City Council conducted public hearings, receiving testimony and previously conducted studies detailing the adverse effects on minors of alcohol consumption and the correlation between underage drinking and the advertising of alcoholic beverages. 3 While one of the studies, the report of the Governor's Prevention Committee, acknowledged that certain studies advanced by the alcohol beverage and advertising industries showed no correlation between alcohol advertising and underage drinking, it concluded that the overwhelming majority of research studies showed a definite correlation. To combat underage drinking, the Prevention Committee's report recommended, among other things, that communities regulate alcoholic beverage advertising on billboards.

In the preamble to the ordinance, the City Council summarized its findings in support of the ordinance. The City Council found, for instance, that the consumption of alcoholic beverages is involved in at least one-half of all the major causes of death among youth and that about one-third of all juvenile males arrested said they had consumed alcohol within the previous 72 hours. In concluding that a connection exists between underage drinking and the widespread advertising of alcoholic beverages, the City Council found that alcoholic beverages are the second most heavily advertised products in America (after cigarettes), and that outdoor billboards are a "unique and distinguishable" medium of advertising which subjects the public to involuntary and unavoidable forms of solicitation. The City Council noted that children are exposed to the advertising of alcoholic beverages "simply by walking to school or playing in their neighborhood" and that children's "attitudes favorable to alcohol are significantly related to their exposure to alcohol advertisements." The City Council pointed to the Prevention Committee's report that the " 'overwhelming majority' of research studies showed a definite correlation between alcohol advertising and underage drinking" and concluded that "[a]n ordinance restricting the placement of advertisements for alcoholic beverages in publicly visible locations within Baltimore City is necessary for the promotion of the welfare and temperance of minors exposed to such advertisements." Attempting to tailor its ban, the City Council allowed advertising of alcoholic beverages in commercial and industrial areas, stating that it was "narrowly focus[ing] its efforts on those advertisements which most directly affect minors where they live, attend school, attend church and engage in recreational activities."

On January 14, 1994, several weeks before the ordinance was to become effective, Anheuser-Busch, Inc., filed suit in federal court, facially challenging the constitutionality of the ordinance under the First and Fourteenth Amendments. It also challenged the ordinance as it might be applied to public service messages which Anheuser-Busch typically sponsors. One week later, Penn Advertising of Baltimore, Inc., filed a similar suit.

Anheuser-Busch is the nation's largest brewer of beers and malt beverages, producing approximately 15 different brands, including Budweiser, Michelob, and Busch. It advertises in all media, including outdoor billboards and displays. In addition to contending that there is no correlation between alcoholic beverage advertising and underage drinking, Anheuser-Busch asserts that the purpose of its advertising is "to solidify brand loyalty and increase market share by

Page 1310

shifting adult beer drinkers from other brands to the advertised brand of beer." In its complaint, Anheuser-Busch alleges that it promotes its brands of beer on dozens of billboards in Baltimore and that on seven it publishes public service messages such as, "Know when to say when" and "Let's stop underage drinking before it starts." These public...

To continue reading

FREE SIGN UP