dissenting:
I dissent because I believe we should vacate the district courts’ judgments and remand these cases for evidentiary hearings.- I address in this dissent both the cases pertaining to advertising of alcoholic beverages and the case pertaining to the advertising of cigarettes.
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. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). The difficulty in these cases, and in the related case pertaining to cigarette advertising,* arises from the third and fourth parts of the Central Hudson inquiry. These are “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351. In the cigarette advertising case, the district court noted that the parties agree with the first — but not the second — part of the Central Hudson test. Penn Advertising, 862 F.Supp. at 1406. This slight difference in the posture of the cases *331does not change my analysis of the proper response to the Supreme Court’s remand.
My dissent concerns how we should respond to the Supreme Court’s remand and what procedures we should follow at this stage of the litigation. My dissent does not undertake to express an opinion on the merits of these cases. I wholeheartedly agree with Baltimore’s officials, the amici who support them, and the parties that minors should not be encouraged directly or subliminally to drink or smoke. Nevertheless, balancing the First Amendment’s protection of commercial speech against the city’s restriction of the advertising at issue requires answering the third and fourth inquiries of Central Hudson. To obtain a sound basis for deciding these inquiries, district and reviewing courts need factual records. The district courts reached their decisions in An-heuser-Busch and Penn Advertising without an evidentiary hearing. Instead, the courts relied in large part on Posadas de Puerto Rico Assoc. v. Tourism Co. of P.R., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986), and deferred to the Baltimore City Council’s legislative record and findings. Unfortunately, the district courts did not have the benefit of 44 Liquormart, Inc. v. Rhode Island, — U.S. -, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996).
In II Liquor Mart, the district court did not accept Rhode Island’s legislative determination that banning the advertising of liquor prices would reduce consumption. Instead, the district court conducted an evidentiary hearing and reached the conclusion, which was based on testimony at the hearing, that the ban was unconstitutional. 44 Liquor Mart, Inc. v. Racine, 829 F.Supp. 543 (D.R.I.1993). The court of appeals reversed, accepting as reasonable Rhode Island’s submission that competitive price advertising would increase consumption. It held that the statute was constitutional. 44 Liquormart, Inc. v. Rhode Island, 39 F.3d 5 (1st Cir.1994). In turn, the Supreme Court reversed, criticizing the court of appeals’ reliance on legislative findings to determine whether the ban of commercial speech infringed the First Amendment. 44 Liquormart, — U.S. at -, 116 S.Ct. at 1503-04 (Stevens, J.) and — U.S. at -, 116 S.Ct. at 1515 (O’Connor, J., concurring in the judgment). By deciding not to remand for an evidentiary hearing despite the teaching of II Liquor-mart, I am concerned that our court is following the First Circuit’s path.
In II Liquormart, the Court criticized its own opinion in Posadas, 478 U.S. at 342, 344, 106 S.Ct. at 2977, 2978, because it had “accepted as reasonable, without further inquiry, Puerto Rico’s assertions that the regulations furthered the government’s interest and were no more extensive than necessary to serve that interest.” 44 Liquormart, — U.S. at -, 116 S.Ct. at 1522 (O’Connor, J., concurring in the judgment). At least seven members of the Court expressly decided not to follow Posadas, concluding that a legislature’s decision to suppress commercial speech, even if reasonable, is not entitled to deference. 44 Liquormart, — U.S. at -, 116 S.Ct. at 1510-11 (Stevens, J., concurring in the judgment) and — U.S. at — 116 S.Ct. at 1522 (O’Connor, J., concurring in the judgment). Rather than accept at face value the legislature’s proffered justification for a speech regulation, courts should take a “closer look” and carefully examine “the relationship between the asserted goal and the speech restriction used to reach that goal.” — U.S. at —, 116 S.Ct. at 1522 (O’Connor, J., concurring in the judgment). In other words, courts should examine the evidence presented by the parties to make an independent determination about whether the underlying facts satisfy the Central Hudson test. See — U.S. at -, 116 S.Ct. at 1509-10 (Stevens, J., concurring in the judgment).
The independent evaluation that is now required is not possible in the absence of a factual record. It is true that the positions taken by Baltimore may turn out to be supported by a preponderance of the evidence. But speculation about what might be is not enough to resolve issues of First Amendment coverage that must ultimately turn on factual findings. In order to meet its burden under Central Hudson, the city must show “not merely that its regulation will advance its interest, but also that it will do so ‘to a material degree.’ ” 44 Liquormart, — U.S. *332at — , 116 S.Ct. at 1509 (Stevens, J., concurring in the judgment) (quoting Edenfield v. Fane, 507 U.S. 761, 771, 113 S.Ct. 1792, 1800-01, 123 L.Ed.2d 543 (1993)). Even assuming, as common sense might suggest, that Baltimore’s restrictions will reduce underage drinking, to some degree, without any findings of fact we cannot determine whether the effect will be significant. See 44 Liquormart, — U.S. at -, 116 S.Ct. at 1509 (Stevens, J., concurring in the judgment). Accordingly, each party should be given the opportunity to present evidence on this issue and to test the strength of the opposing party’s evidence.
Baltimore must also show that its speech regulation is narrowly tailored. Anheuser-Busch argued that the city could implement other measures that would reduce underage drinking as effectively as the advertising restrictions without regulating speech. The company specifically suggested education programs and increased law enforcement efforts. Cf. 44 Liquormart, — U.S. at -, 116 S.Ct. at 1510 (Stevens, J., concurring in the judgment) and — U.S. at -, 116 S.Ct. at 1521-22 (O’Connor, J., concurring in the judgment). The company’s position must be viewed in light of the numerous exceptions to the ordinance that inevitably will allow a substantial amount of alcohol advertising to reach a great number of minors. The company’s argument should be evaluated on the strength of the facts that support and negate it. The parties should-be given the opportunity to present and contest those facts.
The same reasoning applies to Baltimore’s restriction on cigarette advertising. Whether that restriction advances the asserted governmental interest and whether it is unnecessarily extensive raise factual questions that only an evidentiary hearing can answer. For example, Baltimore’s transit buses, which carry children as well as adults, are exempted from the ordinance that restricts advertising of cigarettes. The ordinance permits such advertising at a ball park where minors watch games. What effect these and similar facts have on the validity of the city ordinance should be weighed by a court.
A charge that advertising restrictions infringe rights guaranteed by the First Amendment requires careful evaluation assessing the credibility of witnesses and weighing the evidence. These functions should be performed by a judge — not by a city council. See 44 Liquormart, - U.S. at -, 116 S.Ct. at 1511 (Stevens, J., concurring in the judgment). The court should base its evaluation of the case on the facts underlying the dispute and the reasonable inferences drawn from those facts rather than the version of the facts that appears in the allegations and legislative findings. By affirming the district court’s judgment without adducing and examining the facts, a reviewing court engages in the type of deferential review that 44 Liquormart deems improper.
Present in this litigation are questions about the credibility of expert witnesses and genuine issues of material fact concerning the inferences that reasonably can be drawn from the evidence. Because of these circumstances, neither summary judgment nor dismissal under Rule of Civil Procedure 12(b)(6) is appropriate.
I would vacate the district court’s judgment and remand these cases for evidentiary hearings.
Penn Advertising of Baltimore, Inc. v. Mayor and City Council, 862 F.Supp. 1402 (D.Md.1994), aff'd, 63 F.3d 1318 (4th Cir.1995), vacated and remanded sub nom. Penn Advertising of Baltimore, Inc. v. Schmoke, — U.S. -, 116 S.Ct. 2575, 135 L.Ed.2d 1090 (1996).