Post No Bills

Under the nationwide settlement proposed last summer, the tobacco companies agreed to eliminate all outdoor advertising. But instead of waiting to see how the deal fares in Congress, cities around the country are imposing severe restrictions on tobacco advertising visible to pedestrians and motorists.

Baltimore started the trend with two 1994 ordinances that prohibited ads for tobacco products and alcoholic beverages in residential neighborhoods. The U.S. Court of Appeals for the 4th Circuit rejected a First Amendment challenge in 1996, and in April 1997 the U.S. Supreme Court declined to hear the case.

The next day, Peter F. Vallone, speaker of the New York City Council, introduced a bill to restrict tobacco advertising. As approved almost unanimously in December, the ordinance prohibits tobacco ads, including signs in store windows, within 1,000 feet (about four blocks) of schools, playgrounds, day care centers, youth centers, and amusement arcades.

New York's ordinance would have a more sweeping impact than Baltimore's. Opponents estimated it would bar ads from more than 90 percent of the city, making it barely distinguishable from an outright ban. In January, Mayor Rudolph Giuliani, concerned that the bill wouldn't pass constitutional muster, said he might not sign it, but Vallone said the council could easily override a veto.

Similar ordinances, some targeting alcohol as well as tobacco advertising, have been approved in Chicago, San Francisco, Oakland, Compton, and Los Angeles County (covering unincorporated areas). Other cities, including Milwaukee and Cleveland, are considering ad restrictions.

In upholding Baltimore's ordinances, the 4th Circuit emphasized the exemptions for industrial and commercial neighborhoods, which it said indicated the city was merely trying to "zone…advertising into appropriate areas" as a way of protecting children. The new ordinances tend to be more restrictive, so they may be overturned--especially since the Supreme Court, which in recent years has closely scrutinized limits on commercial speech, has yet to rule on this issue. And while the laws are bogged down in the courts, Congress may bless the tobacco industry's self-censorship, which goes further than any city council would dare.