Lawsuit Challenges L.A. Restrictions on Liquor Ads

A group of grocers, liquor store owners and national beer and wine makers moved to halt Los Angeles’ clampdown on outdoor liquor advertising Monday, filing a lawsuit in federal court that asks a judge to declare the restrictions unconstitutional and to strike them down.

The city law, which was enacted last year and is scheduled to take effect in October, would prevent all advertising for beer, wine and alcohol within 1,000 feet of any residence, school, park, youth center or church, effectively putting more than 90% of the city off-limits. The ban extends not only to billboards, but also to advertisements in the windows of stores or even signs inside shops and markets, if they are visible from the street.

When the City Council approved the ban earlier this year, various groups warned that a challenge to its constitutionality would almost surely be launched, but council members went ahead anyway, arguing that steps were needed to shield children from liquor ads.

Monday, lawyers for the plaintiffs said the council had gone too far and had come up with a solution that does not suit the problem.

“The pitch is that this is to protect kids, but there’s no link between these advertisements and kids drinking,” said Kelli Sager, a leading 1st Amendment lawyer who is one of those representing the plaintiffs. “You can’t simply throw the 1st Amendment out the window because there’s some claim of possible harm. If that’s the case, we’re in trouble.”

The lawsuit does not challenge the city’s restrictions on tobacco advertising, in part because a national settlement with the tobacco companies already has squelched those ads, meaning that the city’s restrictions have little effect.

Councilman Mike Feuer, the leading council proponent of the ordinance, released a statement Monday defending the city restrictions and expressing confidence that the courts will agree.

“The law is based on a direct, scientifically demonstrable link between advertising and illegal underage consumption of alcohol and tobacco,” the councilman said. “Courts afford commercial speech significantly less protection than other forms of expression, and our law was drafted to conform to the legal standard used in evaluating whether a restriction on commercial speech is constitutional. Moreover, the overwhelming majority of courts that have reviewed alcohol and tobacco advertising restrictions similar to ours have upheld them, finding that they do not violate the 1st Amendment.”

All sides agree that the government can take some steps to restrict advertising, known in legal vernacular as “commercial speech.” Some states prohibit billboards alongside highways, for instance, to eliminate what many see as roadside clutter.

But restricting speech based on the content of the advertising is a far dicier business. In general, courts have proved reluctant to allow the government to decide what people can say and how they say it. For a law restricting speech to be upheld, courts usually have required that the government demonstrate a substantial public interest in the regulation, as well as showing that some other method could not achieve the same result.

In this case, council members and other supporters of the advertising ban say the ads lure children into smoking and drinking.

In Feuer’s motion-- approved by the council and signed into law by Mayor Richard Riordan--the councilman argued that “public health studies have identified the relationship between advertising and alcohol consumption by young people. . . .”

Not all researchers agree.

Debra J. Ringold, a professor of marketing at Willemette University in Oregon, argued in a statement submitted to the council that advertising plays a role in determining which kinds of alcohol people drink, but does not influence whether people drink at all.

“Advertising bans, including billboard restrictions, do not affect overall sales of alcohol beverages,” she wrote. “When imposed, such bans result in no measurable reduction in total alcohol sales. Conversely, when advertising restrictions are lifted, there is no empirical evidence suggesting that consumption increases.”

Advocates of advertising restrictions, said John J. Walsh, another lawyer for the plaintiffs, “apparently have never heard of averting your eyes.”

In their lawsuit, which was filed in federal court, opponents of the advertising ban ask the judge to strike down the ordinance, to issue an injunction permanently barring the city from enforcing it and to award the plaintiffs legal fees.

Riordan, a Republican who usually opposes government regulation but who often speaks of the need to help and protect children, supported the restrictions on alcohol and tobacco advertising. “The mayor’s first priority is what’s in the best interest of children,” said Deputy Mayor Noelia Rodriguez.