Alabama Court Upholds Ban on Commercial
Advertising in Navigable Waters
Ex Parte Walter, 2002 WL 363718 (Ala. March 8, 2002)

S. Beth Windham, 3L

This 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 Sign Bote
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 City’s 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.

Advertising 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 Walter’s 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 public function.

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 government’s 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 City’s 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 government’s interest, the court granted deference to the level of effectiveness of the measure as determined by the City.

Walter also challenged the lower court’s 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 city’s burden.12

ENDNOTES
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. Comm’n., 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.