CHICAGO ENDS BILLBOARD CENSORSHIP

Fall 2001

On October 31, 2001, the Chicago City Council repealed an ordinance that prohibited outdoor advertising of tobacco and alcohol. The law was originally enacted in 1997, and was immediately challenged in a federal court lawsuit brought by Deutsch, Levy & Engel attorneys Paul Levy, Phil Zisook and Brian Saucier on behalf of a group of outdoor advertising companies. The lawsuit, Federation of Advertising Industry Representatives, Inc. v. City of Chicago, argued that the Chicago billboard ban was preempted by federal law governing cigarette advertising and was also an unconstitutional violation of the First Amendment freedom of speech. Federal District Court Judge Milton I. Shadur agreed that the Chicago ordinance was preempted by federal law and struck the ordinance down in its entirety, but did not issue an opinion on the First Amendment issues. The City of Chicago appealed that decision to the United States Court of Appeals for the Seventh Circuit, which reversed Judge Shadur's decision and sent the case back to the lower court for a determination of the First Amendment issues. During this time, other states and municipalities passed similar censorship laws, and the issue was litigated throughout the country.

In Chicago, Deutsch Levy & Engel attorneys argued to the Court that the ordinance infringed on free speech and that the Chicago City Council did not take the steps required by the Constitution and commercial speech laws to institute so broad a ban on the advertising of legal products. Before the federal court in Chicago ruled, however, the United States Supreme Court decided the case of Lorillard Tobacco Co. v. Reilly, ruling that bans on cigarette advertising were in fact preempted by federal law and that such advertising bans were too broad to be constitutional under the First Amendment. The Supreme Court decided the case precisely as Deutsch, Levy & Engel was urging in Chicago at the same time. "It has been our position throughout the litigation that the law was exactly as decided by the Supreme Court," said Paul Levy. "We are pleased that the City of Chicago has now recognized our clients' First Amendment commercial speech rights." Recognizing that the Chicago ordinance was doomed, the City of Chicago repealed the ban, or as Alderman Stone noted was "waiving the white flag, quite frankly."

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