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FORUM;ADVERTISING DENIED ITS DAY IN COURT;U.S. APPEALS JUDGE URGES A TRIAL TO SET FATE OF BALT. AD BANS

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By a 2-to-1 vote, the 4th U.S. Circuit Court of Appeals in Richmond, Va., last month upheld Baltimore's ban on outdoor advertising of alcoholic beverages and tobacco near schools and in residential areas. The court majority ruled that Baltimore had met the Supreme Court's First Amendment strictures and that a full trial on the issues at the district court level was not needed. What follows are excerpts from the dissenting opinion of U.S. Circuit Court of Appeals Senior Judge John D. Butzner Jr.

"I dissent because I believe we should vacate the district courts' judgments and remand these cases for evidentiary hearings . . .

"The district court, whose judgment we review, noted that the parties agree that `the [Anheuser-Busch] advertising at issue is not unlawful or misleading, and that the city's interest in promoting the welfare and temperance of minors is substantial' . . .

"This agreement establishes that the advertising satisfies the first two parts of the test the Supreme Court prescribed for determining whether regulation of commercial speech violates the First Amendment. The difficulty in these cases, and in the related case pertaining to cigarette advertising, comes from the third and fourth parts of [the First Amendment test].

"These are whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. . .

"I wholeheartedly agree with Baltimore's officials, the amici who support them, and the parties that minors should not be encouraged directly or subliminally to drink or smoke. Nevertheless, balancing the First Amendment's protection of commercial speech against the city's restriction of the advertising at issue requires answering the third and fourth inquiries [of the First Amendment test] . . .

"To obtain a sound basis for deciding these inquiries, district and reviewing courts need factual records. The district courts reached their decisions in [the alcoholic beverage and cigarette cases] without an evidentiary hearing. Instead the courts . . . deferred to the Baltimore City Council's legislative record and findings . . .

"Even assuming, as common sense might suggest, that Baltimore's restrictions will reduce underage drinking to some degree, without any findings of fact we cannot determine whether the effect will be significant. Accordingly, each party should be given the opportunity to present evidence on this issue and to test the strengths of the opposing party's evidence.

"Baltimore must also show that its speech regulation is narrowly tailored. Anheuser-Busch argued that the city could implement other measures that would reduce underage drinking as effectively as the advertising restrictions without regulating speech. The company specifically suggested education programs and increased law enforcement efforts.

"The company's position must be viewed in light of the numerous exceptions to the ordinance that inevitably will allow a substantial amount of alcohol advertising to reach a great number of minors. The company's argument should be evaluated on the strength of the facts that support and negate it. The parties should be given the opportunity to present and contest those facts.

"The same reasoning applies to Baltimore's restriction on cigarette advertising . . . The ordinance permits such advertising at a ball park where minors watch games. What effects these and similar facts have on the validity of the city ordinance should be weighed by a court.

"A charge that advertising restrictions infringe rights guaranteed by the First Amendment requires careful evaluation assessing the credibility of witnesses and weighing the evidence. These functions should be performed by a judge-not a city council."

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