Ban on broadcast ads for commercial casinos upheld

FIFTH CIRCUIT–The U.S. Court of Appeals in New Orleans (5th Cir.) reaffirmed its November 1995 holding that a federal statute barring broadcast advertisements for commercial casinos is constitutional, after the U.S. Supreme Court remanded the case for reconsideration in light of a 1996 high court case, 44 Liquormart v. Rhode Island.

The statute was challenged by the Greater New Orleans Broadcasting Association, which argued that restrictions on such ads violate the First Amendment free speech rights of casinos in states where commercial gambling is legal.

In the court’s panel decision, Chief Judge Edith Jones 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 court said that the Liquormart decision made applying the standard commercial speech test more difficult, because the Supreme Court was not clear on how to determine whether a law “directly advances” a government interest. That test requires the court to examine, among other things, whether the law in question directly advances the governmental interest asserted and whether the government used the least restrictive means necessary to restrict the commercial speech in question.

Jones noted that similar bans have been struck down because they did not directly advance the government’s interest, often by allowing similar activity to go unregulated.

But Jones wrote that the state can lawfully distinguish different types of gambling for advertising purposes, such as state-run lotteries, Indian and charitable gambling, based on the social benefits and costs as well as their geographic scope. The law “simply targets the powerful sensory appeal of gambling conveyed by television and radio, which are also the most intrusive advertising media, and the most readily available to children.”

The court also said it saw a need for flexibility in order to protect “non-casino-gambling states” from broadcasts by casinos in neighboring areas.

The broadcasting association has asked the U.S. Supreme Court to consider the case again. (Greater New Orleans Broadcasting Association, Inc. v. United States; Media Counsel: Ashton Hardy, Metairie, Louisiana)