Alabama Court Upholds Ban on Commercial
Advertising in Navigable Waters
Parte Walter, 2002 WL 363718 (Ala. March 8, 2002)
S. Beth Windham, 3L
Spring, the Alabama Supreme Court affirmed the right of a municipality
to prohibit advertising by boats for aesthetic reasons. In allowing
municipalities to regulate this form of expression, the court decided
this kind of ordinance did not violate the right to free speech under
the First Amendment.1
The appellant, David Walter, operated a small tugboat, named the Sign
Bote, in the coastal waters of Alabama.2 The boat had an electronic
sign affixed and advertised adult novelties and sexy
swimwear for a Gulf Shores store.3 The City of Gulf Shores
initially notified Walter that advertising by boat was not permitted
in the Citys waters, citing general health and safety ordinances.
The city recommended that Walter apply for a municipal occupational
business license, even though the city had already denied a similar
application from another party.4 Walter requested the license
but was denied in part because of the offensive nature of his advertising.5
The City Council then immediately amended a city ordinance to prohibit
advertising using a boat on navigable waters. Afterwards, Walter allegedly
violated the ordinance eight times and was convicted of five violations.
and the First Amendment
On appeal of his conviction, Walter claimed the ordinance restricted
his commercial speech and violated his Constitutional rights. He argued
that the city adopted the ordinance in an unreasonable, arbitrary
and capricious manner. He postured that the general laws of the State
did not allow cities to pass ordinances regulating businesses based
on aesthetic reasons alone. The trial court found Gulf Shores
reliance on public welfare concerns was appropriate as it included
physical, aesthetic and monetary values.
The Alabama Supreme Court noted that Walters advertising was
commercial speech.6 Because commercial speech serves both the
purpose of advertising for the speaker and educating the consumer,
the government cannot completely prohibit commercial speech. However,
an ordinance may ban misleading or unlawful speech if it serves no
The court evaluated the advertising using a four-part test set by
the U.S. Supreme Court to ascertain whether commercial speech restrictions
were unconstitutional.7 The test required a determination of
whether (1) the expression was protected under the First Amendment,
(2) the government asserted a substantial governmental interest, (3)
the regulation directly advanced the governmental interest, and (4)
a less restrictive regulation could serve the interest.8 While
acknowledging that commercial speech is protected, the court noted
that it does not have the same high level of protections as other
forms of Constitutionally protected speech such as speaking in public
forums. In analyzing the governments interests, the court recognized
a strong interest in aesthetic improvement acknowledging the unique
position of a coastal city such as Gulf Shores stating the aesthetic
value of preserving the natural beauty of that coastline for a city
heavily dependent on tourism cannot be overstated. Barring waterborne
signage to avoid creating a carnival type atmosphere is a permissible
exercise of the Citys police power.9 Consequently,
the court reasoned that the regulation directly advanced the governmental
objective. Finally, failing to find any narrower restriction that
would meet the governments interest, the court granted deference
to the level of effectiveness of the measure as determined by the
Walter also challenged the lower courts requirement that he
carry the burden of proof to show that his constitutional rights were
violated.10 In particular, Walter relied on a Supreme Court
case that stated the party seeking to uphold a restriction on
commercial speech carries the burden of justifying it.11
The Court responded, without analysis, that the City did admit a transcript
of the City Council meeting in which the ordinance was passed and
found this satisfied the citys burden.12
1. The First Amendment states Congress shall make no law. .
.abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for
a redress of grievances. U.S. Const. amend. I.
2. Ex Parte Walter, 2002 WL 363718, *1 (Ala. March 8, 2002).
3. Id. at *2.
4. Id. at *1.
5. Id. at *2 (while it was undisputed that the vessel did not exhibit
lewd or obscene advertising, there was evidence presented that at
least one council member voted against the license because he had
received complaints that some of the advertising, promoting adult
toys, was considered offensive by some residents).
6. Id. at *3.
7. Id. at *7, citing Central Hudson Gas v. Public Serv. Commn.,
447 U.S. 557 (1980).
8. Id., citing Supersign of Boca Raton, Inc. v. City of Fort Lauderdale,
766 F.2d 1528,1530 (11th Cir. 1985).
9. Id. at *8.
10. Id. at *3.
11. Edenfield v. Fane, 507 U.S. 761, 770-771 (1993).
12.Walter at *4.