One means of improving the visual quality of a community, while also serving to reduce alcohol consumption by minors, is to adopt an ordinance to prohibit billboards that advertise alcohol.
Ordinances in Baltimore and San Diego
Prior to the 1997 tobacco settlement which banned outdoor advertising of most tobacco products, Baltimore adopted two separate ordinances addressing alcohol and cigarette billboard advertising. The Baltimore ordinances prohibited the placement of any display advertising alcohol or cigarettes in “publicly visible locations,” including outdoor billboards, sides of buildings, and freestanding signboards.
The ordinances include a number of exceptions, such as signs within licensed premises, on buses or cabs, at stadiums, in areas adjacent to interstate highways, and in those residential and business zones in which children would not normally be found. The Baltimore ordinance has survived industry lawsuits in federal court.
In 1998, Oakland, California adopted a strict ordinance prohibiting alcohol ads on billboards in residential areas and near schools. The ordinance also banned alcohol advertising within three blocks of recreation centers, churches, and licensed day care facilities. According to an attorney for one of the billboard firms that challenged the ordinance, the measure left only 70 of the city’s 1,450 billboards available for such ads. On December 7, 2000, a federal district court determined that the ordinance was a reasonable fit with the goal of decreasing youth demand for alcoholic beverages and that the ordinance was therefore constitutional.
On October 30, 2000, San Diego adopted an ordinance which prohibits advertising alcohol on any billboard within 1,000 feet of any school, playground, recreation center or facility, child care center, arcade, or library. Despite its seemingly limited scope, the ordinance eliminates the use of approximately 53 percent of the billboards in San Diego for alcohol advertising. The ordinance’s primary sponsor, Councilman George Stevens, believes that “limiting alcohol advertising on billboards in areas frequented by young people will allow (existing alcohol prevention programs) to be more effective.”
Benefits of Prohibiting Alcohol Billboards
Studies indicate that the alcohol industry is among the leading advertisers on billboards. Billboards advertising beer and hard liquor are readily visible to children. The Baltimore and San Diego ordinances, for example, cite several studies demonstrating the link between advertising and the consumption of these products by minors. Thus, limiting alcohol advertising on billboards could help reduce underage drinking.
Restrictions on alcohol billboards raise an important constitutional issue that the billboard industry may invoke in its inevitable challenges to the ordinance. Because prohibiting billboards that advertise alcohol regulates speech, opponents of the ordinance may argue that it violates the right to free speech protected by the First Amendment to the U.S. Constitution.
In 44 Liquormart v. Rhode Island, the United States Supreme Court struck down a state law regulating off-premise advertising of liquor prices. The law prohibited liquor stores from advertising sale prices of alcohol, for example, on signs, billboards, or in newspapers or other publications. At the same time, the United States Court of Appeals for the Fourth Circuit upheld Baltimore’s ban on alcohol advertising on billboards in Anheuser-Busch v. Schmoke. The Supreme Court declined to hear Anheuser-Busch’s appeal. Thus, it is unclear what the Supreme Court will do with its next billboard content case.
Commercial speech is protected by the First Amendment, but federal courts have concluded that advertisements may be regulated if the ordinance satisfies all of these three criteria:
- The asserted governmental interest addressed by the law or regulation is substantial;
- The law or regulation directly advances the asserted governmental interest; and
- The law or regulation employs a means that is narrowly tailored to achieve the desired objective.
A billboard company and a manufacturer of alcoholic beverages challenged the well-written ordinances adopted by Baltimore in federal court. In both cases, the courts rejected claims that the ordinance violated the First Amendment.
Enacting Billboard Ordinances
Because the billboard industry vigorously challenges billboard ordinances in court, the governing body in your community must demonstrate compliance with the three criteria summarized above as it enacts its ordinance.
Therefore, the town council should create a record, preferably in public meetings, that does the following:
1. Provide evidence showing the importance of restricting alcohol use among minors.
The state or locality should demonstrate the substantial interest in limiting alcohol use, particularly among young people. In Baltimore and San Diego, the city councils included references to the state prohibition on drinking by minors and the state requirement that students take classes instructing them in the harmful effects of alcohol. Similar references should be included either in the ordinance itself or in the legislative history or other formal documents subject to both public and court review.
2. Demonstrate the relationship between alcohol advertising and underage drinking.
The Supreme Court and many other courts have recognized the link between advertising a particular product and the use of that product. Indeed, if the sellers of a product did not believe that advertising did not increase its use, they would not advertise the product. Although courts will typically defer to legislative judgements concerning the relationship between advertising and consumption, communities should provide evidence of a connection between alcohol promotion and alcohol consumption.
The Baltimore and San Diego ordinances list various studies from medical journals, Surgeon General reports, and other sources. In order to further develop the record and show fairness, the city council or other body charged with passing the law should consider holding a public hearing in which all sides of the issue can freely and openly express their views.
3. Demonstrate that the ordinance has a reasonable fit with the goal of reducing alcohol consumption by minors.
Courts generally defer to the judgment of the legislature in determining how best to accomplish the goal of reducing alcohol consumption by minors, and have upheld restrictions on advertising as “reasonable.” In the Baltimore cases, the courts rejected arguments that there was an insufficient or unreasonable fit between the prohibition on billboard advertising and the city’s interest in reducing alcohol consumption by minors. The court reasoned that the existence of other means to attain the same goal (e.g., increased enforcement or education) did not preclude the ban on advertising.
The court also concluded that the ordinance was constitutional even though it allowed for various exceptions and did not apply to other forms of advertising. Finally, the court found the ordinance constitutional because parents are unable to control their children’s exposure to outdoor advertisements of alcoholic beverages. In the December 7, 2000, decision concerning Oakland’s ordinance, U.S. District Court Judge William Alsup determined that “it stands to reason that eliminating alcohol advertising on billboards in areas frequented by minors will materially advance Oakland’s goal even if alcoholic beverages are still advertised in other media.”
Alcohol Billboard Control Challenges
While controlling alcohol billboards can benefit communities, activists seeking such controls should keep several facts in mind:
Prohibiting alcohol billboards will not necessarily improve the appearance of the community. Scenic conservation advocates should be aware that prohibiting alcohol billboards will not require the removal of a single billboard, nor will it prevent the construction of new billboards. It simply limits billboard advertising content. In fact, a billboard company faced with such a prohibition could legally replace a sign advertising cheap beer with a sign advertising adult entertainment.
Prohibiting alcohol billboards also poses great political challenges. While courts have upheld such ordinances, the First Amendment argument is still a powerful persuader. Moreover, such ordinances engender opposition from a host of organizations and interests not typically involved in billboard issues, including the alcohol industry, the advertising industry in general, and civil libertarians.
To counter such opposition, Scenic America recommends that those seeking to prohibit alcohol advertising identify both their community’s billboard control activists and those dedicated to reducing underage drinking. Together, the two forces can craft an ordinance which provides visual benefits to the community and reduces the promotion of underage drinking. For example, such an ordinance might also ban the construction of new billboards or severely restrict their size and location. This step will increase support for the ordinance among those concerned with improving community appearance and overall community health.
Key Cases on the Regulation of Commercial Speech
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 343 (1986).
Board of Trustees v. Fox, 492 U.S. 469 (1989); Edenfield v. Fane, 113 S.Ct. 1792 (1993).
U.S. v. Edge Broadcasting Co., 113 S.Ct. 2696 (1993).
Key Cases on the Regulation of Alcohol or Tobacco Advertising
Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932).
Anheuser-Busch, Inc. v. Mayor and City Council of Baltimore, Civil Action Nos. HAR 94-117, 94-145 (March 28, 1994).
Penn Advertising of Baltimore, Inc. v. The Mayor and City Council of Baltimore, Civil Action No. HM-94-877 (August 11, 1994).
Anheuser-Busch, Inc. v. Schmoke, Civil Action No. 94-1431 (November 13, 1996).
44 Liquormart v. Rhode Island, 116 S.Ct. 1495 (1996).