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California legislator says kids, outdoor alcohol ads don't mix

David Hudson
First Amendment Center

A California legislator is taking aim at outdoor alcohol ads by introducing a bill that would restrict their location near areas frequented by children, such as schools and libraries.

California Assembly Bill 1932, introduced last week by state Assemblywoman Susan Davis, would prohibit outdoor alcoholic-beverage advertisements within 1,000 feet from any "child care facility, elementary school, library, high school, playground, youth center, or building that is used primarily as a place of worship."

The measure would allow messages that oppose the "use of alcoholic beverage products." However, the measure does not allow ads that include both positive and negative messages about alcohol ads.

"No part of this [law] shall be construed to permit an advertisement promoting the use of alcoholic beverage products by including a message opposing the use of alcoholic beverage products within that advertisement," the bill reads.

The stated goal of the measure, like similar proposals in other states, is to protect children. Many cities across the country introduced billboard bans on tobacco and advertising after a 1994 Baltimore, Md., ordinance survived a constitutional challenge in the federal courts.

This year legislators in other states, including Rhode Island, have introduced legislation limiting outdoor ads for tobacco and alcohol. In West Virginia, lawmakers are considering banning outdoor tobacco ads.

In Anheuser-Busch, Inc. v. Schmoke, the 4th U.S. Circuit Court of Appeals in both 1995 and 1996 ruled that an alcohol-ad zoning law did not violate the First Amendment.

In 1995, the 4th Circuit ruled the 1,000-foot alcohol-ad ban in Baltimore constitutional, writing that it was necessary for the "welfare and temperance" of children. However, the 4th Circuit had to reassess its ruling after the U.S. Supreme Court issued greater protections for commercial speech in the 1996 decision 44 Liquormart v. Rhode Island.

In its 1996 decision, the 4th Circuit wrote that even though the ad restriction "may also reduce the opportunities for adults to receive … information, we recognize that there were numerous other means of advertising available to adults that did not subject children to involuntary and unavoidable solicitation [while] … walking to school or playing in the neighborhood."

The appeals court said that "children deserve special solicitude in the First Amendment balance because they lack the ability to assess and analyze fully the information presented through commercial media."

Richard Kaplar, editor of the Commercial Speech Digest, says the California bill infringes on free-speech rights.

"This bill is a shotgun approach that puts far too many restrictions on speech about a lawful product," he said. "It appears that a storekeeper within the proscribed radius would not even be able to display an outdoor sign saying that alcohol products were available for purchase within. This measure would effectively ban most alcohol advertising in populated areas.

"Clearly, there are much more effective ways to reduce underage drinking without restricting speech, such as enforcing laws against sales to minors," Kaplar said.

Davis was out of the office and could not be reached for comment.

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