Anheuser-Busch, Inc. v. Schmoke

101 F.3d 325, 1996 WL 657711

Opinions

Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge HAMILTON joined. Senior Judge BUTZNER wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

On May 13, 1996, the Supreme Court handed down its decision in 44 Liquormart, Inc. v. Rhode Island, — U.S. -, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), and a week later vacated our decision in this case and remanded it to us “for further consideration in light of 44 Liquormart, Inc. v. Rhode Island.” — U.S. -, 116 S.Ct. 1821, 134 L.Ed.2d 927. We have read the opinion in II Liquormart and have considered its impact on the judgment in this case. , For, the reasons that follow, we conclude that II Liquor-mart does not require us to change our decision. Accordingly, we affirm the district court’s judgment for the reasons previously given and readopt our previous decision.

* See Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305 (4th Cir.1995) (Anheuser-Busch I).

I

In Anheuser-Busch I, we upheld against a constitutional challenge a city ordinance prohibiting the placement of stationary, outdoor advertising that advertises alcoholic beverages in certain areas of Baltimore City. 63 F.3d at 1317. The ordinance was designed to promote the welfare and temperance of minors exposed to advertisements for alcoholic beverages by banning such advertisements in particular areas where children are expected to walk to school or play in their neighborhood. Id. at 1314-17. Applying the four-prong test for evaluating commercial speech announced in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), we concluded, in respect to the disputed prongs, that the ban of outdoor advertising of alcoholic beverages in limited areas directly and materially advances Baltimore’s interest in promoting the welfare and temperance of minors. See Anheuser-Busch I, 63 F.3d at 1314. After our own independent assessment, we recognized the reasonableness of Baltimore City’s legislative finding that there is a “definite correlation between alcoholic beverage advertising and underage drinking.” Id. We also concluded that the regulation of commercial speech is not more extensive than necessary to serve the governmental interest. Id. at 1316-17. Recognizing that in the regulation of commercial speech there is some latitude in the “fit” between the regulation and the objective, we concluded that “no less restrictive means may be available to advance the government’s interest.” Id. at 1316. While we acknowledged that the geographical limitation on outdoor advertising may also reduce the opportunities for adults to receive the information, we recognize that there were numerous other means of advertising to adults that did not subject the children to “involuntary and unavoidable solicitation [while] ... walking to school or playing in their neighborhood.” Id. at 1314. Based on our close look at Baltimore’s asserted goal and the billboard zoning used to achieve that objective, we concluded:

Although no ordinance of this kind could be so perfectly tailored as to all and only those areas to which children are daily exposed, Baltimore’s efforts to tailor the ordinance by exempting commercial and industrial zones from its effort renders it not more extensive than is necessary to serve the governmental interest under consideration.

Id. at 1317.

II

In 44 Liquormart, by contrast, the State prohibited all advertising throughout Rhode Island, “in any manner whatsoever,” of the price of alcoholic beverages except for price tags or signs displayed with the beverages and not visible from the street. — U.S. at -, 116 S.Ct. at 1601. The State contended that the ban served the State’s interest in promoting temperance by keeping alcoholic prices high and therefore consumption low. See id. The district court found as a fact, however, that the ban “has no significant impact” on consumption. 44 Liquor Mart, Inc. v. Racine, 829 F.Supp. 543, 549 (D.R.I.1993). The State also argued that the Twenty-first Amendment’s delegation to the states of the power “to prohibit commerce in, or the use of, alcoholic beverages,” U.S. Const, amend. XXI, § 2, favors the state’s ban of price advertising of alcoholic beverages. See — U.S. at -, 116 S.Ct. at 1502.

The Supreme Court held the blanket ban unconstitutional simply as “an abridgement of speech protected by the First Amendment” and rejected the claim that the Twenty-first Amendment “save[d] Rhode Island’s ban on liquor price advertising.” — U.S. at -, -, 116 S.Ct. at 1501, 1514-15. The opinion for the Court did not provide a rationale for its conclusion that the ban violated the First Amendment, and no opinion addressing the First Amendment violation commanded a majority of the Court. Under Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260.(1977), when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. at 193, 97 S.Ct. at 993.

Applying the Marks rule, eight justices in three separate opinions concluded that the mechanism of keeping alcoholic prices high as a way to keep consumption low imposes too broad a prohibition on speech to be justified by the end. See 44 Liquormart, — U.S. at -, 116 S.Ct. at 1509-10 (Stevens, J., concurring in the judgment); id. at — —, 116 S.Ct. at 1519 (Thomas, J., concurring in the judgment); id. at -, 116 S.Ct. at 1521-22 (O’Connor, J., concurring in the judgment). Justice Stevens, joined by Justices Kennedy, Souter, and Ginsburg, noted that “without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State’s interest in promoting temperance.” Id. at -, 116 S.Ct. at 1509. Justice' Stevens also noted that alternative forms of regulation were available that would not impinge speech and would “be more likely to achieve the State’s goal of promoting temperance. As the State’s own expert conceded, higher prices can be maintained either by direct regulation or by increased taxation.” Id. at -, 116 S.Ct. at 1510. Similarly, Justice O’Connor, writing an opinion in which Chief Justice Rehnquist, Justice Souter and Justice Breyer joined, concluded,

If the target is simply higher prices generally to discourage consumption, the regulation imposes too great, and unnecessary, a prohibition on speech in order to achieve it_ “[T]he objective of lowering consumption of alcohol by banning price advertising could be accomplished by establishing minimum prices and/or by increasing sales taxes on alcoholic beverages.”

Id. at -, 116 S.Ct. at 1521-22 (O’Connor, J., concurring in the judgment) (quoting 44 Liquormart, Inc. v. Rhode Island, 39 F.3d 5, 7 (1st Cir.1994) (quoting Rhode Island’s expert witness)). Justice O’Connor concluded that because the regulation fails “even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulation.” Id. at -, 116 S.Ct. at 1522 (O’Connor, J., concurring in the judgment). Eight justices thus concluded that keeping legal users of alcoholic beverages ignorant of prices through a blanket ban on price advertising does not further any legitimate end. See id. at -, 116 S.Ct. at 1509-10 (Stevens, J., concurring in the judgment); id. at -, 116 S.Ct. at 1518 (Thomas, J., concurring in the judgment); id. at -, 116 S.Ct. at 1521-22 (O’Connor, J., concurring in the judgment).

Ill

While Rhode Island’s blanket ban on price advertising failed Central Hudson scrutiny, Baltimore’s attempt to zone outdoor alcoholic beverage advertising into appropriate areas survived our “close look” at the legislature’s means of accomplishing its objective in An-heuser-Busch I. Baltimore’s ordinance expressly targets persons who cannot be legal users of alcoholic beverages, not legal users as in Rhode Island. More significantly, Baltimore does not ban outdoor advertising of alcoholic beverages outright but merely restricts the time, place, and manner of such advertisements. And Baltimore’s ordinance does not foreclose the plethora of newspaper, magazine, radio, television, direct mail, Internet, and other media available to Anheuser-Busch and its competitors.

Moreover, in Baltimore City’s case, neither the state nor the city is attempting to undermine democratic processes and cireum- • vent public scrutiny by substituting a ban on advertising for a ban on the product, as the 44 Liquormart Court feared was the case with Rhode Island. — U.S. at — , 116 S.Ct. at 1508 (Stevens, J., concurring in the judgment); see also id. at -, 116 S.Ct. at 1517 (Thomas, J., concurring in the judgment) (citing “the dangers of permitting the government to do covertly what it might not have been able to muster the political support to do openly”); Central Hudson, 447 U.S. at 566 n. 9, 100 S.Ct. at 2351 n. 9; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 780 n. 8, 96 S.Ct. 1817, 1835 n. 8, 48 L.Ed.2d 346 (1976) (Stewart, J., concurring). Rather, in Baltimore City, like in other communities, the possession and consumption of alcoholic beverages by minors has been already banned directly and forthrightly through legislation. See Md.Code Art. 27, §§ 400-403A. Baltimore’s restrictions thus reinforce the democratic decisionmaking mechanism’s conclusion as to the dangerousness of underage drinking by protecting children from exposure to advertising which the legislature reasonably considers harmful in itself to children’s maturation. And far from undermining the free dissemination of information to independently choosing consumers, Baltimore’s ordinance supports the full development of its young so that they will be able to assess their market options intelligently and independently.

In addition to the reasons given in An-heuser-Busch I and given here based on our consideration of U Liquormart, the differences between the Baltimore and Rhode Island regulations further support the constitutionality of Baltimore’s ordinance. In contrast to Rhode Island’s desire to enforce adult' temperance through an artificial budgetary constraint, Baltimore’s interest is to protect children who are not yet independently able to assess the value of the message presented. This decision thus conforms to the Supreme Court’s repeated recognition 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. In the context of cable television, the Supreme Court recently upheld restrictions on programming imposed by the Cable Television Consumer Protection and Competition Act as a means of protecting children from indecent programming. See Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, — U.S. -, -, 116 S.Ct. 2374, 2386, 136 L.Ed.2d 888 (1996) (plurality opinion). In the context of the radio medium, the Court has approved extra restrictions on indecent speech because of the pervasiveness of the medium and the presence of children in the audience. See FCC v. Pacifica Foundation, 438 U.S. 726, 760-51, 98 S.Ct. 3026, 3040-41, 57 L.Ed.2d 1073 (1978) (comparing indecent speech during hours when children are listening to the proverbial pig in the parlor); see also Action for Children’s Television v. FCC, 58 F.3d 654, 657 (D.C.Cir.1995) (upholding the Publie Telecommunications Act against a First Amendment challenge based on the state’s compelling interest in protecting minors), cert. denied, — U.S. -, 116 S.Ct. 701, 133 L.Ed.2d 658 (1996). Similarly, the Supreme Court has sustained a law which protected children from non-obseene literature. See Ginsberg v. New York, 390 U.S. 629, 639-40, 88 S.Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968). And, while it has acknowledged a right to private possession of adult pornography in the home, see Stanley v. Georgia, 394 U.S. 557, 566, 89 S.Ct. 1243, 1248-49, 22 L.Ed.2d 542 (1969), the Court has clearly distinguished child pornography and allowed a stronger legislative response “to destroy a market for the exploitative use of children.” Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 1696, 109 L.Ed.2d 98 (1990); see also New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 3355-56, 73 L.Ed.2d 1113 (1982). The underlying reason for the special solicitude of children was articulated long ago: “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into frill maturity as citizens.” Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944).

Baltimore’s ordinance attempts to protect its children in a manner and with a motive distinct from those evidenced by Rhode Island in Uh Liquormart and in accord with an unbroken chain of Supreme Court cases which indicate its desire to ensure that children do not become lost in the marketplace of ideas. Accordingly, on reconsideration of our Central Hudson analysis of the time, place, and manner restriction in Anheuser-Busch l in light of U Liquormart, we again affirm the judgment of the district court.

IT IS SO ORDERED.

In readopting our opinion, we do not continue to rely on Posadas de Puerto Rico Associates v. Tourism Co. of P.R., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986), in view of the doubt placed on that opinion by a majority of the Court in 44 Liquormart. See - U.S. at -, 116 S.Ct. at 1511 (Stevens, J., concurring in the judgment) (joined by Kennedy, Thomas, and Ginsburg, JJ.) and - U.S. at -, 116 S.Ct. at 1522 (O’Con-nor, J., concurring in the judgment) (joined by Rehnquist, C.J., and Souter and Breyer, JJ.). Because we do not defer blindly to the legislative rationale, but rather agree with it based on our own independent- conclusion about the fit between legislative objective and the regulation used to achieve that objective, the holding in Posadas is not necessary to our opinions upholding Baltimore City's ordinance.