Anheuser-Busch Cos. and Penn Advertising, Baltimore, last week asked the high court to again look at the two Baltimore cases the court has already overturned. The Supreme Court will decide whether to hear the cases by the end of its current term in June.
`THREAT TO ALL ADVERTISERS'
In the filings, A-B and Penn argued that the 4th U.S. Circuit Court of Appeals in Richmond, Va., which reconsidered and again upheld the bans in November, didn't follow the high court's instruction. After its 44 Liquormart v. Rhode Island decision last May, the Supreme Court vacated lower court decisions in several other cases, including the Baltimore ones, and sent them back for reconsideration.
The appellate court justices "didn't take the direction of the court and not only made some mistakes but added a new theory of law that is a threat to all advertisers," said John J. Walsh, a counsel for A-B.
He said the appellate court's ruling that the bans were legal because they were "for the protection of children" could allow restrictions on almost any kind of advertising.
DIDN'T REVIEW CITY'S EVIDENCE
Further, the appellate court's position that it could accept the city's argument that the signs endangered children without reviewing the city's evidence could have big implications, he said.
"It's a threat to all advertising," he said. "That you would merely defer to local legislators without challenge is very deleterious."
Eric Rubin, a counsel for Penn, said the appellate court's decision was "diametrically opposite" to the meaning the high court wanted to convey in reversing the cases last spring.
A-B also claimed the appellate court is wrongly trying to carve out a new "children" exception to commercial speech's constitutional rights.
A decision by the Supreme Court to take the outdoor cases could effect the challenge of the FDA's tobacco ad curbs.
U.S. District Judge William L. Osteen, in Greensboro, N.C., is due to rule shortly on the tobacco and advertising groups' request for a summary judgment barring the FDA rules.
His decision would be appealed to the same appellate court that considered the Baltimore cases.