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read the following case and answer the four questions in the beginning of the word file. The case study also in the file. Need less than one paper answering the whole question as list not as an essay.

Read the following case and answer the following questions:

1. What law was at issue in the case and what was the source of that law?

2. Who challenged the law, and on what grounds was the law challenged?

3. Do you think the challenged law was fair? Explain why.

4. How did the court of appeals decide the case? Was this an easy case for the court to decide?

63 F. Supp 1305 (4th Cir. 1995)
In January 1994, Baltimore exercised the authority granted it by the State and enacted Ordinance 288 prohibiting the outdoor advertising of alcoholic beverages in certain locations in Baltimore City. The prohibition in the ordinance is subject to the same 10 exceptions specified in the State’s authorizing statute, and it also includes an exception permitting such advertising in certain commercially and industrially zoned areas of the City. By its terms, the ordinance was to become effective February 5, 1994.
Before enacting the ordinance, the Baltimore City Council conducted public hearings, receiving testimony and previously conducted studies detailing the adverse effects on minors of alcohol consumption and the correlation between underage drinking and the advertising of alcoholic beverages. While one of the studies, the report of the Governor’s Prevention Committee, acknowledged that certain studies advanced by the alcohol beverage and advertising industries showed no correlation between alcohol advertising and underage drinking, it concluded that the overwhelming majority of research studies showed a definite correlation. To combat underage drinking, the Prevention Committee’s report recommended, among other things, that communities regulate alcoholic beverage advertising on billboards.
In the preamble to the ordinance, the City Council summarized its findings in support of the ordinance. The City Council found, for instance, that the consumption of alcoholic beverages is involved in at least one-half of all the major causes of death among youth and that about one-third of all juvenile males arrested said they had consumed alcohol within the previous 72 hours. In concluding that a connection exists between underage drinking and the widespread advertising of alcoholic beverages, the City Council found that alcoholic beverages are the second most heavily advertised products in America (after cigarettes), and that outdoor billboards are a “unique and distinguishable” medium of advertising which subjects the public to involuntary and unavoidable forms of solicitation. The City Council noted that children are exposed to the advertising of alcoholic beverages “simply by walking to school or playing in their neighborhood” and that children’s “attitudes favorable to alcohol are significantly related to their exposure to alcohol advertisements.” The City Council pointed to the Prevention Committee’s report that the “`overwhelming majority’ of research studies showed a definite correlation between alcohol advertising and underage drinking” and concluded that “[a]n ordinance restricting the placement of advertisements for alcoholic beverages in publicly visible locations within Baltimore City is necessary for the promotion of the welfare and temperance of minors exposed to such advertisements.” Attempting to tailor its ban, the City Council allowed advertising of alcoholic beverages in commercial and industrial areas, stating that it was “narrowly focus[ing] its efforts on those advertisements which most directly affect minors where they live, attend school, attend church and engage in recreational activities.”
On January 14, 1994, several weeks before the ordinance was to become effective, Anheuser-Busch, Inc., filed suit in federal court, facially challenging the constitutionality of the ordinance under the First and Fourteenth Amendments. It also challenged the ordinance as it might be applied to public service messages which Anheuser-Busch typically sponsors. One week later, Penn Advertising of Baltimore, Inc., filed a similar suit.
Anheuser-Busch is the nation’s largest brewer of beers and malt beverages, producing approximately 15 different brands, including Budweiser, Michelob, and Busch. It advertises in all media, including outdoor billboards and displays. In addition to contending that there is no correlation between alcoholic beverage advertising and underage drinking, Anheuser-Busch asserts that the purpose of its advertising is “to solidify brand loyalty and increase market share by shifting adult beer drinkers from other brands to the advertised brand of beer.” In its complaint, Anheuser-Busch alleges that it promotes its brands of beer on dozens of billboards in Baltimore and that on seven it publishes public service messages such as, “Know when to say when” and “Let’s stop underage drinking before it starts.” These public service messages typically include a corporate or product logo of Anheuser-Busch.
Penn Advertising is engaged in the business of placing advertising on outdoor advertising signs located throughout Baltimore. It leases land from private property owners, erects and maintains outdoor sign structures on those locations, and rents these signs to its customers, including Anheuser-Busch.
Shortly after commencing these actions, Anheuser-Busch and Penn Advertising filed a motion for a preliminary injunction to enjoin enforcement of Ordinance 288 pending the litigation, and the district court issued a stay of the ordinance’s enforcement. The Mayor and City Council of Baltimore filed motions to dismiss the actions under Federal Rule of Civil Procedure 12(b)(6) (Links to an external site.) on the grounds that the ordinance is (1) protected by the Twenty-First Amendment and (2) a proper regulation of commercial speech under the framework established in Central Hudson. Baltimore attached to its motions the legislative history of Ordinance 288, including the transcript of the hearings before the City Council and copies of four studies that were considered by the Council.
Following a hearing, the district court issued an opinion upholding the constitutionality of the ordinance. Anheuser-Busch, Inc. v. Schmoke, 855 F. Supp. 811 (Links to an external site.) (D. Md. 1994). The court also continued its stay of the ordinance’s enforcement pending appeal. Contrary to the parties’ entreaties that the district court treat Baltimore’s motion only as a 12(b)(6) motion, the court concluded in its opinion that because it considered matters outside of the pleadings, it would treat Baltimore’s motion to dismiss as a motion for summary judgment under Rule 56. On the merits, the court found that “a reasonable fit exists between the Ordinance and the City’s asserted interests,” id. at 820, and that billboards “loom[ ] over children every day while they walk to school, and every time they play in their neighborhood, thus forming an inescapable part of their daily life. . . . Billboard advertisements thus form a constant impetus to consume the product being advertised, the precise goal of the advertisement.” Id. at 822. The court held the ordinance constitutional after concluding that it “directly advances the City’s asserted interest in promoting the welfare and temperance of minors” and is “narrowly tailored” to that end. Id. at 818. Having found the ordinance constitutional under the framework set out in Central Hudson, the court did not address Baltimore’s argument that the ordinance was protected by the Twenty-First Amendment.
On appeal, Anheuser-Busch and Penn Advertising contend that the district court erred by converting Baltimore’s motions to dismiss into motions for summary judgment without allowing them a reasonable opportunity to submit all materials pertinent to consideration of a motion for summary judgment. On the merits, they argue that the ordinance is unconstitutional on its face because (1) it does not directly and materially advance the government’s interest in promoting temperance of minors and (2) it is not narrowly tailored to serve that purpose. They also argue that, as applied, the ordinance would impermissibly restrict their noncommercial speech.
We address first the contention that the district court erred in converting Baltimore’s motions to dismiss into motions for summary judgment without first providing the parties an opportunity to conduct discovery and to submit all pertinent materials to the court. Anheuser-Busch and Penn Advertising contend that they had no indication that the district court had converted the motions to dismiss into motions for summary judgment until the court issued its memorandum opinion.

Federal Rule of Civil Procedure 12(b) (Links to an external site.) provides in relevant part:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(Emphasis added). We have held that a court choosing to treat a motion to dismiss as one for summary judgment errs if it fails to provide the parties with notice and a reasonable opportunity to present their positions under Rule 56. See Gay v. Wall, 761 F.2d 175, 178 (Links to an external site.) (4th Cir. 1985); Plante v. Shivar, 540 F.2d 1233, 1235 (Links to an external site.)(4th Cir. 1976); Johnson v. RAC Corp., 491 F.2d 510, 513 (Links to an external site.) (4th Cir. 1974).
In ruling on Baltimore’s 12(b)(6) motions, the district court stated, without prior notice to the parties, “Because the Court has considered matters outside of the pleadings, the Court will treat the Motion to Dismiss as a Motion for Summary Judgment under Rule 56.” 855 F. Supp. at 812 (Links to an external site.). Apparently the court’s facial analysis of the ordinance relied to some extent on the exhibits which Baltimore filed with its motion to dismiss, and the court’s as-applied analysis involved consideration of the submissions Anheuser-Busch offered in support of its motion for a preliminary injunction. The exhibits which Baltimore filed in support of its motion to dismiss consisted of a copy of Ordinance 288, a transcript of the hearings before the City Council, and four studies that the City Council considered as support for the ordinance. In support of their motions for a preliminary injunction, Anheuser-Busch and Penn Advertising submitted, among other things, the Brewing Industry Advertising Code, sample billboard advertisements, and studies which refute a correlation between alcoholic beverage advertising and underage drinking.
The principal challenge to Ordinance 288, advanced under the last two prongs of Central Hudson, consists of the contention that the ordinance (1) does not directly advance the stated governmental purpose and (2) is not narrowly tailored to accomplish that purpose. These prongs focus on the fit between Baltimore’s statutory objective and the means it selected to achieve that objective. On this facial challenge, the City bears the burden not of establishing that at every coordinate the regulation advances a governmental purpose and does no more, but rather that it had an objectively reasonable belief that the means which it selected constituted a reasonable “fit” with the regulation’s purpose.
If Central Hudson’s test required a perfect fit, then Anheuser-Busch would only have to demonstrate some application of the statute inconsistent with the statute’s purpose to render it unconstitutional for all purposes. Moreover, if the test required a perfect fit, Anheuser-Busch would certainly be entitled to complete discovery in order to identify all of the statute’s possible applications. However, in response to a facial challenge to a regulation of commercial speech, the burden falls on the government to justify its legislative action, but it does not demand that the government canvass every conceivable situation in which some member of the public may be affected atypically by the statute. And the court’s inquiry is limited to consideration of the ordinance on its face against the background of the government’s objective and the prospect of the ordinance’s general effect. If it appears to the court that the legislative body could reasonably have believed, based on data, studies, history, or common sense, that the legislation would directly advance a substantial governmental interest, the government’s burden of justifying it is met. See, e.g., Florida Bar v. Went For It, Inc., 63 U.S.L.W. 4644 (Links to an external site.) (June 21, 1995). As the Supreme Court recently observed in Florida Bar:
[W]e have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and “simple common sense.”
Id. at 4647 (citations omitted). Cf. Edenfield v. Fane, 113 S. Ct. 1792 (Links to an external site.) (1993) (pointing to facts relevant to consideration of as-applied challenge to commercial speech regulation). In Florida Bar, the Court relied principally on a study conducted by the Florida bar on the effects of lawyer advertising to conclude that the prohibition against lawyer solicitation within 30 days of an accident directly and materially advanced the state’s substantial interest of preserving the integrity of the legal profession. Thus, the government’s burden of justifying its legislative enactment against a facial challenge may be carried by pointing to the enactment itself and its legislative history. These are “legislative facts,” the substance of which cannot be trumped by the fact finding apparatus of a single court. See Dunagin v. City of Oxford, Miss., 718 F.2d 738, 748-49 (Links to an external site.) n. 8 (5th Cir. 1983) (en banc), cert denied, 467 U.S. 1259 (1984). While a party challenging an ordinance can point to other factors not considered by the legislature to demonstrate that the legislature acted irrationally, it cannot subject legislative findings themselves to judicial review under a clearly erroneous standard or otherwise. To do so would ignore the structural separation between legislative bodies and courts and would improperly subordinate one branch to the other. The court’s role in reviewing the constitutionality of a legislative enactment is more fundamental; it is limited to addressing whether the legislative enactment conflicts with the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
By force of the same reasoning, if a plaintiff challenges a legislative enactment as applied to an actual circumstance, then the court is given the task of finding the facts defining that circumstance and determining how the circumstance is impacted by the legislative enactment. See Edenfield, 113 S.Ct. at 1800-01 (Links to an external site.).
In this case, the district court properly looked to the legislative history of Ordinance 288 to determine that Baltimore had met its burden under Central Hudson. Having found the burden met, the court was not required on a facial challenge to look further with a more specific inquiry into the ordinance’s impact on Anheuser-Busch and Penn Advertising, nor did it. It was unnecessary for the court to have concluded that, because it looked beyond the pleadings to the transcript and four studies constituting the legislative history, it had to consider the case under Rule 56. For purposes of Rule 12(b)(6), the legislative history of an ordinance is not a matter beyond the pleadings but is an adjunct to the ordinance which may be considered by the court as a matter of law. See generally 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure Section(s) 1357 (1990) (in deciding Rule 12(b)(6) motions, courts may consider matters of public record, items appearing in the record of the case, as well as exhibits attached to the complaint).
Thus, on the facial challenge to Ordinance 288, we will review the district court’s decision, insofar as it considered only the ordinance and its legislative history, as a ruling under Federal Rule of Civil Procedure 12(b)(6) (Links to an external site.), and we review that ruling de novo.
Traditionally, commercial speech was thought to be an aspect of a free market economy, providing information necessary to enable informed market decisions to be made. While commercial speech was subject to governmental regulation, such regulation was resisted by the same forces that favor open and competitive markets. Such speech was not, however, thought to be protected by the First Amendment. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (Links to an external site.) (1942). Beginning in 1975 with the Supreme Court’s decision in Bigelow v. Virginia, 421 U.S. 809 (Links to an external site.) (1975), and in 1976 with its decision in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (Links to an external site.) (1976), a “measure” of First Amendment protection was afforded commercial speech in respect of its informational function. But that protection is significantly weaker than that accorded to the regulation of which is examined under the rubric of strict scrutiny. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 505-07 (Links to an external site.) (1981) (plurality opinion). The Supreme Court has characterized the review of commercial speech regulation as one of intermediate scrutiny, see generally Florida Bar, 63 U.S.L.W. at 4645-46, which is consistent with the “subordinate position [of commercial speech] in the scale of First Amendment values.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (Links to an external site.) (1978).
Intermediate scrutiny of commercial speech regulation is conducted under the four-pronged scheme set forth in Central Hudson. Because the basis for affording protection to commercial speech pertains to its informational function, in order to be entitled to any First Amendment protection, the speech must (1) concern lawful activity and not be misleading. Central Hudson, 447 U.S. at 563 (Links to an external site.). If the commercial speech meets that threshold prong, it may nevertheless be regulated if the government (2) asserts a substantial interest in support of its regulation; (3) demonstrates that the regulation “directly advances the governmental interest asserted”; and (4) demonstrates that the regulation is “narrowly drawn,” i.e.”not more extensive than is necessary” to serve the governmental interest. Id. at 565-66. See also Florida Bar, 63 U.S.L.W. at 4646.
The first two prongs of Central Hudson are not disputed in this case. First, the purchase and consumption of alcoholic beverages are generally lawful, and no party claims that Baltimore’s ordinance targets misleading advertising. And second, it is conceded that Baltimore City has a substantial interest in promoting “the welfare and temperance of [its] minors,” the interest which it seeks to advance through Ordinance 288. The dispute in this case centers on the third and fourth prongs of Central Hudson — whether Ordinance 288 “directly advances” Baltimore City’s interest in reducing underage drinking and whether the ordinance is not more extensive than necessary to serve that interest, i.e. whether it is “narrowly drawn.” The inquiry required under these two prongs amounts to consideration of the “fit” between the City’s ends and the means chosen to accomplish them. See Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341 (Links to an external site.)(1986); United States v. Edge Broadcasting Co., 113 S.Ct. 2696, 2705 (Links to an external site.) (1993).
The inquiry under Central Hudson’s third prong — whether the regulation directly advances the stated interest — does not involve as strict a nexus as that inherent in the traditional tort concept of causation. Rather, the inquiry seeks to elicit whether it was reasonable for the legislative body to conclude that its goal would be advanced in some material respect by the regulation. In Edge, where the federal regulation under consideration prohibited the broadcasting of lottery advertisements from facilities in North Carolina (in support of that state’s anti-gambling policy), the Edge Broadcasting Company contended that the regulation did not advance the governmental interest at stake by sufficiently direct means. The company demonstrated that even though its broadcasting facility was located on the North Carolina side of the Virginia/North Carolina border, over 90% of its listeners were located in Virginia, where gambling was not illegal. It also noted that the federal regulation did not prohibit a Virginia-based broadcasting company from directing its signal to North Carolina listeners and advertising the Virginia lottery. The company argued, therefore, that the regulation did not directly advance the stated governmental interest of supporting North Carolina’s anti-gambling policy. Rejecting the company’s argument, the Supreme Court applied a standard that validated the legislature’s commonsense judgment that its interests would be advanced by the regulation:
Congress plainly made the commonsense judgment that each North Carolina station would have an audience in that State, even if its signal reached elsewhere and that enforcing the statutory restriction would insulate each station’s listeners from lottery ads and hence advance the governmental purpose of supporting North Carolina’s laws against gambling.

113 S.Ct. at 2704 (Links to an external site.). As the result of applying this standard the Court concluded, “We have no doubt that the statutes directly advanced the governmental interest at stake in this case. . . . [T]his would plainly be the case even if, as applied to Edge, there were only marginal advancement of that interest.” Id. at 2704.
Similarly, in Posadas the Court observed that it was reasonable for the Puerto Rico legislature to conclude that its interest in reducing its residents’ demand for casino gambling would be advanced by placing limitations on casino advertising. See 478 U.S. at 341-42 (Links to an external site.).
Again in Metromedia, the Court summarized this approach to the third prong of Central Hudson by noting that the reviewing court may be satisfied where the legislative judgment is “not unreasonable.” 453 U.S. at 509 (Links to an external site.). The Court applied that principle in upholding a ban on any billboard that constituted a distraction and therefore a hazard to traffic safety, even in the face of a claim that the record was “inadequate to show any connection between billboards and traffic safety.” Id. at 508.
In each case where the Supreme Court affirmed the legislative judgment as reasonable, a logical correlation existed between the legislative objective and the means selected to achieve that objective. Thus in Edge, even though only 7.8% of Edge Broadcasting’s listening public lived in North Carolina and even though that small population would still be subject to Virginia-based lottery advertisements, the Court concluded that North Carolina’s anti-gambling policy would be advanced by prohibiting all lottery advertising by North Carolina-based facilities. See 113 S.Ct. at 2704 (Links to an external site.). In Posadas, Puerto Rico’s regulation prohibiting casinos from “advertis[ing] or otherwise offer[ing] their facilities to the public of Puerto Rico” was likewise found to advance Puerto Rico’s interest in reducing its residents’ demand for casino gambling. Id. at 341. Adding to the obviousness of that logic, the Supreme Court noted that “the fact that appellant has chosen to litigate this case all the way to this Court indicates that appellant shares the legislature’s view.” Id. at 342 (citing the statement from Central Hudson, “There is an immediate connection between advertising and demand for electricity [the advertised product]. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales.” 447 U.S. at 569 (Links to an external site.)).
In line with these precedents, we find that it was reasonable for the Baltimore City Council to have concluded that Ordinance 288’s regulation of the outdoor advertising of alcoholic beverages directly and materially advances Baltimore’s interest in promoting the welfare and temperance of minors. The City Council found that outdoor advertising is a unique and distinct medium which subjects the public to involuntary and unavoidable solicitation, and that children, simply by walking to school or playing in their neighborhood, are exposed daily to this advertising. The City Council pointed to its legislative finding that the majority of research studies show a definite correlation between alcoholic beverage advertising and underage drinking, while recognizing that not all studies have reached the same conclusion. There is a logical nexus between the City’s objective and the means it selected for achieving that objective, and it is not necessary, in satisfying Central Hudson’s third prong, to prove conclusively that the correlation in fact exists, or that the steps undertaken will solve the problem. If that were required, communities could never initiate even minor steps to address their problems, for they could never be assured of the success of their efforts. The proper standard for approval must involve an assessment of the reasonableness of the legislature’s belief that the means it selected will advance its ends. Under that approach, we conclude that Baltimore has met its burden of satisfying the third prong of Central Hudson.
Each circuit that has considered the regulation of alcoholic beverage advertising has likewise concluded that the regulation of advertising is reasonably aimed at reducing demand. In Dunagin, the Fifth Circuit stated:
We simply do not believe that the liquor industry spends a billion dollars a year on advertising solely to acquire an added market share at the expense of competitors. Whether we characterize our disposition as following the judicial notice approach taken in Central Hudson Gas, or following the “accumulated, common-sense judgment” approach taken in Metromedia, we hold that sufficient reason exists to believe that advertising and consumption are linked to justify the ban, whether or not “concrete scientific evidence” exists to that effect.

718 F.2d at 750 (Links to an external site.). Similarly, in Oklahoma Telecasters Ass’n v. Crisp, 699 F.2d 490 (Links to an external site.) (10th Cir. 1983), rev’d on other grounds sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (Links to an external site.) (1984), the Tenth Circuit upheld a prohibition against advertising alcoholic beverages, stating:
[W]e hold, as a matter of law, that prohibitions against the advertising of alcoholic beverages are reasonably related to reducing the sale and consumption of those beverages and their attendant problems. The entire economy of the industries that bring these challenges is based on the belief that advertising increases sales.
Id. at 501. We now join these courts in holding that restricting the outdoor advertising of alcoholic beverages directly and materially advances the campaign against underage drinking.
Turning to the fourth prong of the Central Hudson scheme, we must determine whether the government has demonstrated that its regulation of commercial speech “is not more extensive than is necessary” to serve the stated governmental interest. 447 U.S. at 556 (Links to an external site.). In other words, the means selected to regulate speech must be narrowly tailored to serve a substantial state interest. See Florida Bar, 63 U.S.L.W. at 4646; Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 478 (Links to an external site.) (1989). In assessing whether a regulation is narrowly tailored to serve the state’s interest under an intermediate scrutiny framework, the Supreme Court has held that the fit between the regulation and the state’s interest need not be perfect, but need only be reasonable. See Fox, 492 U.S. at 480 (Links to an external site.). Summarizing the fourth prong of Central Hudson, the Court in Fox stated:
What our decisions require is a “fit” between the legislature’s ends and the means chosen to accomplish those ends — a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, as we have put it in the other contexts discussed above, a means narrowly tailored to achieve the desired objective. Within those bounds we leave it to governmental decisionmakers to judge what manner of regulation may best be employed.
490 U.S. at 469 (citations and internal quotations omitted). Thus, if a regulation goes only “marginally beyond what would adequately have served the governmental interest,” the regulation will not be invalidated; only when a regulation is “substantially excessive, disregarding far less restrictive and more precise means” will the regulation be invalidated under this prong of Central Hudson. Fox, 492 U.S. at 479 (Links to an external site.) (citations and internal quotations omitted). And when there is no “far less restrictive and more precise means” available, the Court has accepted a broad ban of commercial advertising on the grounds that it was “perhaps the only effective approach.” Metromedia, 453 U.S. at 508 (Links to an external site.).
Satisfaction of the fourth prong of the Central Hudson test presents the closest question in this case. It is readily acknowledged that …

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