Tomsky also notes that his group has received little or no coverage on the area's radio stations, the bulk of which are controlled by Clear Channel. "At our November news conference in Mission Beach, marking the first anniversary of the law's passage, we had lots of TV stations but no radio other than KPBS." Others complain that Clear Channel carefully uses its airtime to promote sports teams that it has contracts with and to punish or shun those whom it does not favor politically.
So far, though, Tomsky says his group has no complaint with George Stevens. "We came to work most closely with Councilman Stevens to get this through the city attorneys' office, and with his support we got it onto the council docket and passed unanimously." As far as Stevens's aide Charles Lewis goes, Tomsky says, he had no role in the legislative process. "I don't know how he feels. He wasn't in the loop. We worked with Jenny Bates, another of his aides. Our latest appearance before council regarding enforcement of the law was January 28, and Mr. Stevens continues to be very supportive."
Stevens, an ordained minister who often lashes out at homosexuality, alcoholism, and needle-exchange programs, among a long list of what he characterizes as moral transgressions, has long been crusading against liquor ads on billboards in the city. Currently running in the Democratic primary for the 78th District state assembly seat being vacated by Howard Wayne, Stevens also frequently attacks the presence of liquor stores in his largely low-income, high-minority district. "Alcohol is really an equal-opportunity destroyer," he proclaimed when he brought the sign ordinance up for consideration before the council's Public Safety and Neighborhood Services Committee in September 2000.
The measure, opposed by a vigorous lobbying campaign by billboard owners and alcohol vendors, swept through the committee on a 4-0 vote. "I don't see that the alcohol industry has any concern," declared then-councilwoman Valerie Stallings, soon to be brought down in the John Moores influence-buying scandal. "They have plenty of signs."
Before he voted for the ban, then-city councilman Harry Mathis brushed aside threats by the billboard owners to take the city to court. "I'm not daunted by the prospect of a lawsuit."
Today, a lawsuit is exactly what the city is facing. On October 23, 2001, less than a year after the law was passed and went into effect on November 14, 2000, and just a month after city officials began trying to enforce it with a series of citations against allegedly offending billboards in Pacific Beach, Clear Channel Outdoor and Viacom Outdoor Advertising filed suit, charging their free-speech rights had been violated.
The two companies, which between them control the vast majority of the city's remaining 991 billboards, alleged that the city is infringing on their First Amendment rights. "Plaintiffs' Billboards reach a broad range of adult consumers at a relatively low cost and allow an advertiser to communicate with adult consumers in settings where other advertising media might not be available. As such Billboards provide an effective and economically efficient means for retailers, manufacturers, and others to inform adult consumers of the availability, prices and other characteristics of alcoholic beverages," the suit said.
The billboard owners also accused the city council of failing to do its homework.
"Neither the City Council's record of its deliberations concerning the Ordinance, nor the Ordinance itself, refers to any reliable, relevant scientific proof that advertising for alcoholic beverages on Billboards causes minors to purchase or consume alcoholic beverages, that such advertising is directed to minors, or what the actual effect of the regulatory scheme implemented by the Ordinance would be on the consumption and/or purchase of alcoholic beverages by minors.
"Alternatives that were available that the City could have pursued include but are not limited to enacting stricter laws against sales of alcoholic beverages to minors, underage purchase and underage consumption; increasing efforts to enforce existing laws against sales of alcoholic beverages to minors, and underage purchase and underage consumption; and promoting educational efforts in schools and in the community at large for both minors and parents about the risks associated with underage consumption of alcoholic beverages and how to prevent minors from drinking alcoholic beverages."
According to the billboard owners' complaint, the city is doing them "irreparable harm, in that they are required, during the pendency of this litigation, to engage in self-censorship and to cease the dissemination of accurate and truthful commercial and noncommercial speech concerning alcoholic beverages on Billboards, including messages designed to discourage underage consumption by minors, in order to avert further prosecution, thereby depriving Plaintiffs of their constitutional right to engage in speech protected by the First Amendment to the Constitution of the United States..."
San Diego senior deputy city attorney Jim Chapin says that he will soon be bringing the demands of the billboard owners, as presented to the city during preliminary settlement talks, back to the city council for consideration. One of the key demands, he confirms, is reduction of the 1000-foot limit to 500 feet. "We have had a couple of what they call early neutral evaluations in federal court with the magistrate, Judge [James] Stiven, and they've made settlement demands. At this point I'm just going to go into city council -- I'm not exactly sure when, sometime in the next two weeks -- to advise the council about the status of the litigation and tell them what their demands are. There should be something, I would guess, more newsworthy in the next two or three weeks depending upon what the council decides to do."
Among the considerations the council must mull, says Chapin, is that, due to a U.S. Supreme Court decision handed down last July, constitutional law has shifted dramatically in favor of the free speech rights of the billboard industry. "The United States Supreme Court struck down a Massachusetts ban on tobacco advertising, which I think surprised a lot of people, because after the huge [tobacco industry] settlement with all the states, people thought you could restrict tobacco advertising and that wouldn't be subject to challenge, but the First Amendment is broadly construed by the Supreme Court, and they held that commercial speech is protected by the first amendment."