Federal judge tells Oakland, Calif., to justify billboard restrictions

The Associated Press

01.19.99

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SAN FRANCISCO — The city of Oakland must defend its restrictions on liquor billboards by showing why teen-age drinking can't be curbed just as well by education and law enforcement, says a federal judge.

U.S. District Judge Fern Smith's ruling on Jan. 15 leaves the ordinance in effect but allows two billboard companies to proceed with their lawsuit and seek evidence from the city. The suit claims the ordinance violates freedom of speech.

The ordinance, in effect since last June, bans billboards for alcoholic beverages or tobacco in residential areas and sites within 1,000 feet of schools, places of worship, licensed child care facilities, city recreation centers for youth and one popular playing field for children.

It does not apply to signs in stores, on trucks that carry the products or on taxis, and exempts billboards that face interstate highways.

A similar ordinance was approved last September in Los Angeles.

The two companies, Eller Media Co. and Outdoor Systems Inc., said the Oakland ordinance barred liquor ads on more than 90 percent of the signs they leased in the city. They did not challenge the city's restrictions on tobacco advertising, which are largely similar to state law.

Smith refused to block enforcement of the measure last November. She said it regulated only advertising and therefore did not violate the state's exclusive authority to regulate liquor sales.

In the Jan. 15 ruling, Smith said Oakland could rely on common sense, as well as several studies, to conclude that limiting billboards would reduce teen-age drinking, and did not have to offer scientific proof.

But she said the companies might be able to show that the ordinance needlessly restricted their free-expression rights because the goal of reducing teen-age drinking might be met without limiting the right to advertise.

For example, the judge said, laws against selling liquor to minors could be enforced more vigorously, with increased penalties; places where alcohol is sold could be limited, and new educational campaigns could discourage underage drinking.

"The city has failed to explain why the less speech-invasive means proposed by (the companies) are not equally effective," Smith said.

Though cities aren't prohibited from regulating advertising to protect the public welfare, the availability of "numerous and obvious" equally effective alternatives would be evidence that billboard restrictions went too far in curbing free expression, Smith said.

Indira Talwani, a lawyer for the city, expressed confidence yesterday that the city could still persuade the judge to dismiss the suit before trial.

"It shouldn't be hard to show that there weren't a number of easy alternatives that were equally effective," Talwani said. "If there were, the city would have used them."

Rex Heinke, lawyer for the billboard companies, could not be reached for comment yesterday.