Billboards become testing ground for tobacco and alcohol ad bans

Tuesday, March 24, 1998

The competing interests of free speech and protection of minors clash prominently these days in the debate surrounding billboard advertising for tobacco and alcohol products.

Billboards are the primary battleground for fights over commercial free-speech rights in this country. Numerous cities—most prominently Chicago and New York—have recently enacted ordinances restricting the use of billboards for advertising tobacco and alcohol products.

City officials contend these measures are necessary to protect minors from using tobacco and alcohol. Commercial advertisers respond that the restrictions unduly hamper the free flow of truthful information about lawful products to adults.

Commercial associations have challenged the New York and Chicago restrictions in federal courts. The cases—Greater New York Metropolitan Food Council, Inc. and Advertising Freedom v. Giuliani and Federation of Advertising Industry Representatives, Inc. v. City of Chicago—could well determine the legal status of what can be pitched via billboards.

The genesis for this rapid increase in billboard regulations was a federal appeals court decision in late 1996 upholding a pair of Baltimore bans on alcohol and tobacco billboards within 1,000 feet of any school or playground (Anheuser-Busch, Inc. v. Schoke and Penn Advertising v. Schmoke).

Anti-tobacco advocates continue to emphasize the harm caused by the advertising of tobacco and alcohol. Judy Sopenski, executive director of Stop Teen-Age Addiction to Tobacco, said: “I believe in the First Amendment. But when it's used by wealthy corporations to target and recruit children, I draw the line.

“There is no First Amendment right to harm,” she said. “The tobacco industry is using the First Amendment as a disguise to addict our children. Tobacco advocates are simply trying to pull the wool over the public's eyes.”

Prominent First Amendment attorney Daniel Troy, who specializes in commercial speech issues, offers a differing view.

“First of all, the First Amendment applies to wealthy corporations also,” Troy said. “Secondly, general ads that happen to be seen by children must be protected. Otherwise, nothing will be protected because children are in most areas.

“People who want to protect children against underage smoking should favor strict enforcement on the purchase and use of tobacco products by those underage, without trampling on First Amendment values,” he added.

Chicago and New York are not the only cities fighting tobacco and alcohol billboards. Similar restrictions have been enacted in Tacoma, Albany, N.Y., San Francisco, Oakland, and Compton, Calif., among others.

Even as restrictions surface nationwide, interested parties are carefully monitoring the pending litigation in Chicago and New York.

Commercial speech expert Richard Kaplar, vice president of The Media Institute, said: “Local governments around the country are watching New York and Chicago to see if those cities' recently enacted restrictions on billboard advertising can withstand federal court challenges.”

Kaplar says “it is difficult to imagine how either the New York or Chicago ordinance could survive scrutiny under recent Supreme Court jurisprudence. A commercial speech victory in either venue will likely slow the adoption of new bans. Moreover, it would set the stage, if upheld on appeal, for a Supreme Court challenge that would resolve the split with the Fourth Circuit. First Amendment advocates hope such an outcome would mean, at last, a clear-cut affirmation of commercial speech rights for alcohol and tobacco billboards.”

In the meantime, the struggle between free speech and protection of minors continues.