Justices strike down ban on broadcast advertising for casinos

WASHINGTON, D.C.–The U.S. Supreme Court struck down a 65-year- old federal ban on broadcast advertising for casino gambling in mid- June in a unanimous ruling, holding that the statute “sacrifice[d] an intolerable amount of truthful speech about lawful conduct.”

The Court ruled that the ban on broadcast advertising for casino gambling violated the First Amendment as applied to Louisiana broadcasters who wished to accept ads for private commercial casinos in Louisiana and Mississippi. Although the Court did find that the government had articulated a “substantial interest” in curbing the social costs associated with gambling and assisting states that restrict or prohibit gambling, it found that the “regulatory regime [was] so pierced by exemptions and inconsistencies that the Government [could not] hope to exonerate it.”

In reversing the U.S. Court of Appeals in New Orleans (5th Cir.), the Court said that under its long-established test, it must consider whether: the speech concerns a lawful activity and is not misleading; the governmental interest is substantial; the regulation directly advances the governmental interest; and the regulation is not more extensive than necessary to serve the governmental interest.

The Court held that the numerous exemptions and inconsistencies in the ban on casino advertising frustrated the government’s asserted interests and ability to claim that the ban was narrowly tailored.

In writing for the Court, Justice John Paul Stevens pointed out that the government had exempted Indian tribal casinos, in addition to government-operated, nonprofit, and “occasional and ancillary” commercial casinos from the ban.

He also observed that the ban was ineffective, even with respect to private commercial casinos. “The FCC has permitted broadcasters to tempt viewers with claims of ‘Vegas-style entertainment’ 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, rather than directly promot[ing] its gaming aspects,” Stevens wrote.

With such broad exemptions and inconsistent application, the Court stated that it appeared “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.”

Chief Justice William Rehnquist and Justice Clarence Thomas both wrote concurrences. Rehnquist, who also joined the opinion of the Court, emphasized that Congress was not prevented from “undertak[ing] substantive regulation of the gambling industry.” Thomas, who only concurred in the judgment, said that an interest in keeping “users of a product or service ignorant in order to manipulate their choices in the marketplace” is illegitimate and cannot justify regulation of commercial speech any more than it can justify regulation of “noncommercial speech.” (Greater New Orleans Broadcasting Ass’n., Inc. v. United States; Media Counsel: Nory Miller, Washington, D.C.)