Greater New Orleans Association of Broadcasters v. United States
Decided on June 14, 1999; 527 US 173


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed:  1st Amendment (press, speech, association), commercial speech 

B. Legal Question Presented: 

To what extent - if at all - does the First Amendment permit government to suppress truthful and non-misleading information about lawful products and services, namely, privately-held casino gambling?

II. CASE SUMMARY:

A. Background:

Petitioners, a group of New Orleans broadcasters, wanted to run advertisements for private commercial casinos that are lawfully operated in accordance with the state regulations of Louisiana and Mississippi. The broadcasters sought a declaration that 18 U.S.C. § 1304 and its related Federal Communications Commission (FCC) regulation, which prohibit radio and TV broadcast of ads for privately operated commercial casino gambling, were violative of the First Amendment as applied to them.

All parties had stipulated that the proposed broadcasts constituted commercial speech, that the content of the advertisements was not misleading and the ads concerned lawful activities, that is, private casino gambling in Louisiana and Mississippi.

However, the government believed that the law and regulation restricting advertising would result in a contraction of consumer demand for casino gambling which would, in turn, alleviate the social costs of gambling - specifically, the problems associated with compulsive or addictive gambling.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Bruce J. Ennis, Jr., argued the cause for petitioners.  With him on the briefs were Ashton R. Hardy, Nory Miller, and Donald B. Verrilli, Jr. Deputy Solicitor General Barbara Underwood argued the cause for the United States, et al.

With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, Matthew D. Roberts, Anthony J. Steinmeyer, and Christopher J. Wright.
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
The law and regulation contain too many exceptions and do not really advance the government's asserted interest of helping States that want to protect their residents from exposure to advertising for gambling activities, thereby reducing the social costs of gambling.

The inconsistencey is that Federal law does allow "...advertising promoting Government casinos, Indian casinos, race track and off-track betting to be broadcast from within even States that have not authorized those forms of gambling."

There does not seem to be any difference in the social costs between gambling at other locations and via other means versus gambling at private casinos that would justify the imposition of the restrictions.
Thirty-eight of the 50 States do not allow private casino gambling, and Congress wants to support those States "...by prohibiting the casinos that operate legally in the other 12 States from using radio and TV commercials to reach into the homes of people in all 50 States."

The U.S. is trying to do away with broadcast ads - which have broad interstate reach - for any gambling activities, but presently faces problems because the businesses... "engage in other activities as well and seek to market those activities, and seek to smuggle in their advertising of casino gambling." The Constitution should not be interpreted to... "require Congress to outlaw this controversial practice altogether rather than seeking to keep it off the airways and to reduce demand, and especially to reduce demand among impulse buyers who respond to broadcast advertising."
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Steven R. Shapiro, Counsel for ACLU, joined broadcasters, publishers, advertisers, and citizens in filing an amicus brief in support of Petitioners.

Joining in filing briefs of amici curiae urging reversal were Richard E. Wiley and Daniel E. Troy for the American Advertising Federation; John G. Roberts, Jr., David G. Leitch, and Frank J. Fahrenkopf, Jr. for the American Gaming Association; John J. Walsh, Steven G. Brody, and Gilbert H. Weil for the Association of National Advertisers, Inc; William H. Mellor, Clint Bolick, and Scott G. Bullock for the Institute for Justice; P. Cameron De Yore, Gregory J. Kopta, and Jack N. Goodman for the National Association of Broadcasters et al.; David H. Remes, Patricia A. Barald, Daniel J. Popeo, and Richard A. Samp for the Washington Legal Foundation; and Gerald S. Rourke for Valley Broadcasting Co. et al.
No amici curiae briefs were filed on Respondent's behalf.
IV. THE SUPREME COURT'S DECISION:

"The operation of §1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it... Under current law, a broadcaster may not carry advertising about privately operated commercial casino gambling, regardless of the location of the station or the casino... On the other hand, advertisements for tribal casino gambling authorized by state compacts - whether operated by the tribe or by a private party pursuant to a management contract - are subject to no such broadcast ban, even if the broadcaster is located in, or broadcasts to, a jurisdiction with the strictest of antigambling policies...

The FCC's interpretation and application of §§ 1304 and 1307 underscore the statute's infirmity. Attempting to enforce the underlying purposes and policy of the statute, the FCC has permitted broadcasters to tempt viewers with claims of 'Vegas-style excitement' at a commercial 'casino,' if 'casino' is part of the establishment's proper name and the advertisement can be taken to refer to the casino's amenities... While we can hardly fault the FCC in view of the statute's focus on the suppression of certain types of information, the agency's practice is squarely at odds with the governmental interests asserted in this case...

From what we can gather, the Government is committed to prohibiting accurate product information, not commercial enticements of all kinds, and then only when conveyed over certain forms of media and for certain types of gambling indeed, for only certain brands of casino gambling - and despite the fact that messages about the availability of such gambling are being conveyed over the airwaves by other speakers. Even putting aside the broadcast exemptions for arguably distinguishable sorts of gambling that might also give rise to social costs about which the Federal Government is concerned - such as state lotteries and parimutuel betting on horse and dog races... the Government presents no convincing reason for pegging its speech ban to the identity of the owners or operators of the advertised casinos...

The second interest asserted by the Government - the derivative goal of 'assisting' States with policies that disfavor private casinos - adds little to its case. We cannot see how this broadcast restraint, ambivalent as it is, might directly and adequately further any state interest in dampening consumer demand for casino gambling if it cannot achieve the same goal with respect to the similar federal interest. Furthermore, even assuming that the state policies on which the Federal Government seeks to embellish are more coherent and pressing than their federal counterpart, §1304 sacrifices an intolerable amount of truthful speech about lawful conduct when compared to all of the policies at stake and the social ills that one could reasonably hope such a ban to eliminate...

Held: The judgement is reversed. 18 U.S.C. Section 1304 may not be applied to advertisements of lawful private casino gambling that are broadcasted by petitioners' radio or television stations located in Louisiana, where such gambling is legal.
Justice Vote: 9 Pro vs. 0 Con

  • Stevens, J. Pro (wrote majority opinion)
  • Ginsburg, R. Pro (joined majority opinion)
  • Breyer, S. Pro (joined majority opinion)
  • Souter, D. Pro (joined majority opinion)
  • Kennedy, A. Pro (joined majority opinion)
  • O'Connor, S. Pro (joined majority opinion)
  • Scalia, A. Pro (joined majority opinion)
  • Rehnquist, W. Pro (wrote concurring opinion)
  • Thomas, C. Pro (wrote concurring opinion)
 V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging reversal; the Supreme Court reversed the ruling of the lower court in a unanimous 9-0 vote, giving the ACLU an apparent win.