Anheuser-Busch, Inc. v. Schmoke, ANHEUSER-BUSC

Page 325

101 F.3d 325

65 USLW 2340, 24 Media L. Rep. 2491

ANHEUSER-BUSCH, INCORPORATED, Plaintiff-Appellant, v. Kurt L. SCHMOKE, in his official capacity as Mayor of

Baltimore City; Mayor and City Council of Baltimore City;

City Council of Baltimore City; David Tanner, in his

official capacity as the General Superintendent of Zoning

Administration and Enforcement, Defendants-Appellees,

and

John Joseph Curran, Attorney General of the State of

Maryland, in his official capacity, Defendant.

The Association of National Advertisers, Incorporated; The

American Association of Advertising Agencies; The Media

Institute; National Association of Broadcasters; The

Thomas Jefferson Center for the Protection of Free

Expression; Washington Legal Foundation; Center for

Science in the Public Interest; Coalition for Beautiful

Neighborhoods; Baltimore City Wide Liquor Coalition for

Better Laws and Regulations, Amici Curiae.

PENN ADVERTISING OF BALTIMORE, INCORPORATED, Plaintiff-Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE CITY, A Municipal

Corporation, Defendant-Appellee,

and

John Joseph Curran, Attorney General of the State of

Maryland, in his official capacity, Defendant.

The Association of National Advertisers, Incorporated; The

American Association of Advertising Agencies; The Media

Institute; National Association of Broadcasters; The

Thomas Jefferson Center for the Protection of Free

Expression; Washington Legal Foundation; Center for

Science in the Public Interest; Coalition for Beautiful

Neighborhoods; Baltimore City Wide Liquor Coalition for

Better Laws and Regulations, Amici Curiae.

Nos. 94-1431, 94-1432.

United States Court of Appeals Fourth Circuit.

Nov. 13, 1996.

Eric Michael Rubin, Walter E. Diercks, Jeffrey Harris, Rubin, Winston, Diercks, Harris & Cooke, Washington, D.C.; John Joseph Walsh, Steven G. Brody, Cadwalader, Wickersham & Taft, New York, New York; Thomas M. Wood, IV, Neuberger, Quinn, Gielen, Rubin & Gibber, P.A., Baltimore, Maryland; P. Cameron DeVore, Davis, Wright, Tremaine, Seattle, Washington, for Appellant.

Neal M. Janey, City Solicitor, Burton Harry Levin, Principal Counsel, Department of Law, Baltimore, Maryland, for Appellees. Richard E. Wiley, Lawrence W. Secrest, III, Daniel E. Troy, Luis de la Torre, Frank Winston, Jr., Wiley, Rein & Fielding, Washington, D.C.; J. Joshua Wheeler, Robert M. O'Neil, Thomas Jefferson Center for the Protection

of Free Expression, Charlottesville, Virginia, for Amici Curiae Media Institute, et al. Daniel J. Popeo, David A. Price, Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation. Christopher J. Fritz, Julie Ellen Squire, Thomas C. Dame, Gallagher, Evelius & Jones, Baltimore, Maryland, for Amici Curiae Coalition for Beautiful Neighborhoods, et al. George Hacker, Center for Science in the Public Interest, Washington, D.C., for Amicus Curiae Center for Science. John F. Kamp, Washington, D.C.; Gilbert H. Weil, New York, New York; Burt Neuborne, New York, New York, for Amici Curiae Association of National Advertisers, Inc.

Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

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 44 Liquormart and have considered its impact on the judgment in this case. For the reasons that follow, we conclude that 44 Liquormart 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 1501. 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...