High court to consider restrictions on casino ads

U.S. SUPREME COURT–The U.S. Supreme Court has agreed to hear arguments about whether a law barring casino gambling advertisements on radio and television is unconstitutional after two federal appeals courts disagreed on the issue.

In October 1998, the court of appeals in New Orleans (5th Cir.) decided that the government had a substantial interest in discouraging gambling, and the federal law that restricted only broadcast advertisements for commercial gambling, but not all legal gambling, materially advanced that interest. The U.S. Supreme Court had sent the case, brought by New Orleans broadcasters, back to the Fifth Circuit for reconsideration in light of its 1996 decision in 44 Liquormart v. Rhode Island.

In an opinion by Chief Judge Edith Jones, the Fifth Circuit held that the government had narrowly tailored the restrictions on broadcast advertising of casinos and gambling in order to control demand for an activity treated as a “vice” by the government.

The court distinguished the case from 44 Liquormart, which struck down a Rhode Island law prohibiting advertising prices for liquor, by noting that promotional advertising “directly influences consumer demand, as compared with the indirect market effect criticized in 44 Liquormart.”

The Fifth Circuit ruled that the government can distinguish among certain types of gambling for advertising purposes. The court also noted that the law is not a blanket ban on advertising, but is only a time, place, and manner restriction. Other media exists for the casinos to use, such as newspapers, magazines and billboards.

In February 1997, the U.S. Court of Appeals in San Francisco (9th Cir.) in Valley Broadcasting Company v. United States ruled that broadcasters could air casino advertisements. The court rejected the government’s argument that it had a substantial interest in reduction of public participation in commercial lotteries and in protecting those states that choose not to permit casino gambling within their borders. The court found that the arguments were too speculative to satisfy the burden needed for a restraint on commercial speech.

The U.S. Supreme Court will hear arguments in the case in late March. (Greater New Orleans Broadcasting Association v. United States, Media Counsel: Ashton Hardy, New Orleans)