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Judge won't halt enforcement of California city's billboard ordinance

By David Hudson
First Amendment Center

A federal court in California has refused to stop enforcement of an Oakland ordinance that limits the location of alcohol billboards containing primarily commercial speech — speech that, as the U.S. Supreme Court has defined it, "does no more than propose a commercial transaction."

On Dec. 16, 1997, the city enacted a law restricting the location of both alcohol and tobacco billboards. The law, which went into effect June 7, provides that "no person may place any advertising sign for alcoholic beverages or tobacco products in publicly visible locations." The law also provided that such advertisements could not be located within 1,000 feet of any school, city-owned youth center, child care facility or place of worship.

City officials passed the law in response to increasing youth consumption of alcohol and tobacco products.

Eller Media and Outdoor Systems, companies which lease billboards in the city, challenged the prohibition against outdoor alcohol advertising in federal court. The companies claimed the law violates the First Amendment by unconstitutionally restricting both commercial and noncommercial speech.

The two companies also sought an order from the court prohibiting the city from enforcing the law until a final determination had been made in the case.

Federal District Court Judge Fern Smith last week granted a preliminary injunction with respect to noncommercial speech but denied the request with respect to commercial speech.

Smith wrote in Eller Media Company v. City of Oakland that "the ordinance appears directly to advance the city's stated ends" of protecting minors from the negative effects of billboard advertising. Smith noted that the city had relied on "scientific studies" that show a "definite correlation between alcoholic beverage advertising and underage drinking." The judge also mentioned that the city had conducted public hearings which featured expert testimony regarding such a correlation.

The outdoor advertising companies argued that the city's belief that the ordinance would directly and materially advance its interests was based on speculation. However, Smith stated: "It is not necessary at this juncture for the city to dispel all doubts that the ordinance will accomplish what it was intended to do and to the fullest extent possible."

Smith did grant a preliminary injunction with respect to noncommercial speech, primarily because the city asserted that it did not intend to restrict noncommercial speech and would not enforce its ordinance against noncommercial speech.

However, many billboard messages could contain both commercial and noncommercial speech. For this reason, Smith addressed the problem of so-called "hybrid" speech.

According to Smith, "hybrid speech must be evaluated on a case-by-case basis" in accordance with guidelines established by U.S. Supreme Court case law. Smith concluded: "Hybrid speech more in the nature of commercial speech will fall outside the scope of the preliminary injunction; hybrid speech more in the nature of noncommercial speech will fall within it."

Rex Heinke, attorney for Eller Media and Outdoor Systems, said: "This decision demonstrates one of the reasons that there shouldn't be a distinction between commercial and noncommercial speech. First of all, the opinion shows how hard it is to draw a line between commercial and noncommercial speech. Secondly, the opinion shows that the government will have to draw that line.

"The case raises the basic question as to whether commercial speech should be entitled to as much protection as noncommercial speech," Heinke said.

Richard Kaplar, editor of The Commercial Speech Digest, agreed, saying: "Trying to define commercial speech is a problem as old as the commercial speech doctrine. The court's contortions over 'hybrid' speech provide a good argument for abolishing the First Amendment distinction between commercial and noncommercial speech."

Hienke said his clients had "not yet decided" whether to appeal Smith's decision.

The attorneys who represented the city of Oakland could not be reached for comment.

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