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Spokane, Washington  Est. May 19, 1883

Billboard Law Kept Alive

Los Angeles Times

In another setback for the tobacco industry, the Supreme Court on Monday cleared the way for Baltimore to enforce a citywide ban on billboards advertising cigarettes or beer.

The move, while not a final ruling on the matter, is likely to encourage other cities to ban public ads for tobacco products. It also suggests the Clinton administration may not face a First Amendment barrier in seeking to restrict cigarette advertising directed at minors.

Last week, a federal judge in North Carolina ruled the U.S. Food and Drug Administration has the authority to regulate nicotine as a drug, but it does not have the authority under the statute in question to regulate advertising. Administration officials have said they are confident the government will prevail on appeal and obtain the authority to restrict advertising as proposed.

The Baltimore case has been seen as a test of whether such restrictions could survive a First Amendment challenge.

In 1994, the Baltimore city council passed the ordinance in an effort to shield young people, especially in the inner city, from the pervasive influence of giant billboards touting tobacco and alcohol. Industry groups and advertisers challenged the law on First Amendment grounds.

Last summer, their chances looked good. The Supreme Court unanimously overturned a Rhode Island state law that banned the advertising of beer prices and stressed that ads for lawful products are generally protected as free speech.

Nonetheless, the U.S. Court of Appeals in Richmond, Va., upheld the Baltimore ordinance as constitutional. Unlike the Rhode Island law which affected adults, “Baltimore’s interest is to protect children,” the appeals court said.

This decision was doubly good news for the Clinton administration. First, the lower court agreed the government has a special interest in protecting children, as FDA officials asserted in their proposal. Second, the appeals court has jurisdiction in North Carolina and will hear the appeal from last week’s ruling.

The Supreme Court, in its ruling Monday, did not hand down a written ruling on the First Amendment issue at stake in the Baltimore case (Penn Advertising vs. Baltimore, 96-1429), but simply refused to take up the matter. Thus, Monday’s ruling left open the prospect the high court will address the issue in a future case.