The city justifies its ad ban by saying it would aid enforcement of laws against smoking and drinking by underage consumers because "studies" demonstrate advertising for these products stimulates demand for them among minors.
Advertising's First Amendment protections have never been absolute. The Supreme Court has ruled that governments can censor truthful advertising if they can demonstrate that doing so "directly advances" a "substantial" public interest and that the restrictions are no more intrusive than necessary.
We recognize that competing interests have to be balanced in cases like this, but the judges who have reviewed Baltimore's actions are giving the city a free ride. They accepted the city council's conclusions about advertising's role in promoting underage drinking and smoking almost at face value without demanding proof, though advertisers argued the city relied on "evidence" that was controversial and inconclusive at best. It was sufficient, wrote the circuit court of appeals, for Baltimore to show it could "reasonably believe" that an ad ban would reduce underage smoking and drinking.
This is dangerous thinking if the First Amendment is to do what it is meant to do. It is in the Bill of Rights to protect unpopular speech, and now speech for unpopular but legal products-even if governments complain that it ties their hands.
Ad people should support their industry organizations as they call on the Supreme Court to put the burden of proof where it belongs-on the censor.