Under this more difficult test, Penn asserts that it is inappropriate for this Court to accept the judicially-recognized proposition that advertising increases consumption as sufficient to sustain the City's burden and thus that it is inappropriate for this Court to grant the City's motion for summary judgment. Penn raised substantially the same argument in Anheuser Busch, Inc. and Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 855 F. Supp. 811 (D.Md. 1994) (hereinafter Penn I). Penn I involved a First Amendment challenge to an ordinance very similar to Ordinance 307, except the ordinance challenged in Penn I prohibited alcohol advertising on billboards located in areas that would cause minors to be exposed to such advertising, whereas Ordinance 307 prohibits cigarette advertising on similarly-situated billboards. Judge Hargrove in Penn I did not accept the increased level of scrutiny for commercial speech restrictions which Penn asserted makes it inappropriate for the Courts to defer to a legislative judgment that advertising increases consumption.

Following a hearing, the district court issued an opinion upholding the constitutionality of the ordinance. Anheuser-Busch, Inc. v. Schmoke, 855 F. Supp. 811 (D. Md. 1994). The court also continued its stay of the ordinance's enforcement pending appeal. Contrary to the parties' entreaties that the district court treat Baltimore's motion only as a 12(b)(6) motion, the court concluded in its opinion that because it considered matters outside of the pleadings, it would treat Baltimore's motion to dismiss as a motion for summary judgment under Rule 56. On the merits, the court found that "a reasonable fit exists between the Ordinance and the City's asserted interests," id. at 820, and that billboards "loom[ ] over children every day while they walk to school, and every time they play in their neighborhood, thus forming an inescapable part of their daily life. . . . Billboard advertisements thus form a constant impetus to consume the product being advertised, the precise goal of the advertisement."

The district court, whose judgment we review, noted that the parties agree that "the [Anheuser-Busch] advertising at issue is not unlawful or misleading, and that the City's interest in promoting the welfare and temperance of minors is substantial . . . ." Anheuser-Busch, Inc. v. Mayor and City Council, 855 F. Supp. 811, 813 (D.Md. 1994). This agreement established that the advertising satisfies the first two parts of the test the Supreme Court prescribed for determining whether regulation of commercial speech violates the First Amendment.

The Supreme Court did not cast any doubt on these conclusions in Edenfield or other recent commercial speech cases. See Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 119 S.Ct. 1923, 1932, 144 L.Ed.2d 161 (1999) (permissible to assume more advertising would increase demand for gambling); Edge, 509 U.S. at 434, 113 S.Ct. 2696 (post Edenfield case, accepting legislative judgment that advertising increases demand); Krochalis, 108 F.3d at 1099 (Metromedia remains the law with respect to billboard regulation); Anheuser-Busch, Inc. v. Mayor City Council of Baltimore City, 855 F. Supp. 811, 817-18 (Md. 1994) (Supreme Court has deferred to some legislative judgments even after Edenfield), aff'd, 63 F.3d 1305 (4th Cir. 1995), vacated, 517 U.S. 1206, 116 S.Ct. 1821, 134 L.Ed.2d 927 (1996), judgment reinstated, 101 F.3d 325 (4th Cir. 1996), cert. denied, 520 U.S. 1204, 117 S.Ct. 1569, 137 L.Ed.2d 714 (1997); see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 508, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) ("Our commercial speech cases recognize some room for the exercise of legislative judgment.") (citing Metromedia, 453 U.S. at 507-08, 101 S.Ct. 2882). Although the Supreme Court has recently rejected several legislative judgments regarding commercial speech regulations, it has not suggested that to satisfy the Central Hudson test, expert opinions or other evidence must be presented in cases where common sense will logically suffice. The legislative judgments which the Supreme Court recently rejected went significantly beyond the common sense conclusion that billboards are a traffic haza

         This opinion is published in the advance sheet at this citation, Aneheuser-Busch, Inc. v. Mayor and City Council, 154 F.R.D. 639-650, was withdrawn from the bound volume and will be republished in the Federal Supplement. For republished opinion, see 855 F.Supp. 811.

A mere assertion that a regulation directly advances, or is necessary to advance, a governmental interest is insufficient to justify it; rather, a governmental body seeking to sustain a regulation on commercial speech must demonstrate that "the harms it recites are real" and that its regulation "will in fact alleviate them to a material degree." (Edenfield v. Fane, supra, 507 U.S. at p. 771, 113 S.Ct. at p. 1800, 123 L.Ed.2d at p. 555; Sable Communications v. FCC, supra, 492 U.S. at p. 129, 109 S.Ct. at p. 2838, 106 L.Ed.2d at p. 107; Anheuser-Busch v. Mayor and City Council (D.Md.1994) 855 F.Supp. 811, 814.) Furthermore, where a law is subjected to a colorable First Amendment challenge, the deference afforded to legislative findings does not foreclose independent judicial review of the facts to assure that, in formulating its judgment, the legislative body has drawn reasonable inferences based on substantial evidence.