Petition — Frank v. Minnesota Newspaper Assn., Inc.

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Nos. 87-1943 and 87-1956 NOV 17 1988

OCTOBER TERM, 1988

MINNESOTA NEWSPAPER ASSOCIATION, INC., APPELLANT

ANTHONY M. FRANK,

POSTMASTER GENERAL OF THE UNITED STATES, ET AL.

ANTHONY M. FRANK,

POSTMASTER GENERAL OF THE UNITED STATES, ET AL.,

APPELLANTS

MINNESOTA NEWSPAPER ASSOCIATION, INC.

—

ON APPEALS FROM THE UNITED STATES

UIST RICT COURT FOR THE DISTRICT OF MINNESOTA

BRIEF FOR THE FEDERAL PARTIES

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

IRENE M. SOLET

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ask

QUESTION PRESENTED

Section 1302 para. 5 of Title 18 makes it a crime

knowingly to mail “any newspaper, circular, pamphlet,

or publication of any kind containing any advertisement

of any lottery, gift enterprise, or scheme of any kind

offering prizes dependent in whole or in part upon lot or

chance,” or “any list of the prizes drawn or awarded” by

means of any such lottery or similar enterprise. The

question is whether the advertisement and prize list

clauses in Section 1302 are invalid under the First

Amendment.

(1)

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption, the

United States Postal Service and the United States of

America were named as defendants in the district court.

They are appellants in this Court in No. 87-1956 and

appellees in No. 87-1943.

TABLE OF CONTENTS

Opinion below

Jurisdiction _.

Constitutional, statutory, and regulatory provisions in-

Statement :

A. Historical and statutory background

Summary of argument

Argument:

The restrictions in 18 U.S.C. 1302 on the use of the

mails to promote lotteries are a lawful regulation of

Section 1302 regulates the distribution through

_ the mails of commercial speech promoting | lot-

teries .

A. “Commercial nner is not limited to tradi-

tional forms of “advertising” and embraces

other types of expression that are integrally

related to a commercial transaction...

B. The prize list clause, like the advertisement

clause, regulates only the use of the mails

for the commercial promotion of lotteries _

Section 1302 is a reasonable regulation of com-

mercial speech .

A. Gestion 2008 divestiy premstes covered lentts.

mate governmental interests ...................

1. Section 1302 may be applied to prohibit

the use of the mails to promote an illegal

2. Section 1302 may be applied to prohibit

the use of the mails to promote a lottery

that is legal under federal! or state law

(m1)

Page

Argument—Continued : Page

B. The mailing restrictions in Section 1302 di-

rectly promote Congress's interests... 40

C. The mailing restrictions in Section 1302 are

no more extensive than necessary .............. 42

Eee 46

Appendix A la

Mapper Bannan enn nen nnnn nnn nnennnnnnenenenennnnnnnnnnnnnnnanennenne lla

TABLE OF AUTHORITIES

Cases :

Ah Sin v. Wittman, 198 U.S. 500 (1905) ................ 35

Aimes Publications, Inc. v. United States Postal

Service, Civ. No. 86-1434 (D.D.C. Feb. 23,

1988) 15

Allied Tube & Conduit Corp. ' v. . Indian Head, Ine.,

No. 87-157 (June 13, 1988) ................... ........-...-. 19

Bigelow v. Virginia, 421 U.S. 809 (1975) .. 21

Blount v. Rizzi, 400 U.S. 410 (1971) ......... 37

Bolger v. Youngs Drug Products Corp. 463 US.

EEE 19, 20, 21, 29, 37

Boos Vv. Barry, No. 86-803 (Mar. 22, 1988) aes 16

Branzburg Vv. Hayes, 408 U.S. 665 (1972) ........ 45

Brown V. Hotel & Restaurant Employees Local 54,

AGB UD, GBR CIGD) ....2<cccccncccececee -cnncesersecsscneverenes 33

Capital Broadcasting Co. v. Mitchell, 333 F. Supp.

582 (D.D.C. 1971), aff'd sub nom. Capital Broad-

casting Co. v. Acting Attorney General, 405 U.S.

1000 (1972) . | 31

Carey V. Population Services Int'l, 431 US. Ci

(1977) 21

Central Hudson Ras & Elec. Corp. v. Public Serv.

Comm'n, 447 U.S. 557 (1980) 11, 16, 17, 19, 21, 29,

30, 31, 41, 42

Champion v. Ames (Lottery Case), 188 U.S. 321

(1903) .. _ 8, ®, 14, 34, 35, 40

Chaplinsky Vv. New Hampshire, 315 U.S. 568

(1942) : 15

Connick v. Myers, 461 U.S. 138 (1983) Sete Oa tat 20

Cases—Continued: Page

DeBartolo Corp. v. Florida Gulf Coast Bldg. &

Constr. Trades Council, No. 86-1461 (Apr. 20,

ESS NESS aes AINE ea Se a an Diy, Mem, ST ie 28

Donaldson v. Read Magesine, Inc., 433 U.S. 178

(1948) . 38

Dun & Bradstreet, Ine. v ‘Gresumess Builders,

Ine., 472 U.S. 749 (1985) foe Ace aie ab 17, 20, 21, 22

Dunagin Vv. City of Oxford, 718 F.2d 738 (5th Cir.

1983), cert. denied, 467 U.S. 1259 (1984). 41

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978). 45

Fronce v. United States, 164 U.S. 676 (1897). 27

Francis v. United States, 188 U.S. 375 (1903)... 27

Friedman Vv. Rogers, 440 U.S. 1 (1979) 16, 17, 39

Garcia v. San Antonio Metropolitan Transit Au-

thority, 469 U.S. 528 (1985) 36

Giboney V. wii vteecrettecandaaning 336 U.S. 490

EES 17

Heart of Atlanta Motel, Ine. v. ‘United States, 379

U.S. 241 (1964) a TD 40

Hoffman Estates v. The Flipside, Hoffman Estates,

Ine., 455 U.S. 489 (1982)... 31

Hollywood House Int'l, Inc. v. Klassen, 508 F.2d

1276 (9th Cir. 1974)... 39

Horner Vv. United States (No. D, M3 us. 207

RIEL 9 EERE AE ota EA Mae RE enero cn nee .

Horner V. United States (No. 2), “143 U.S. 570

ESSA TRAIAN ee 8

Horner v. United States, 147 U.S. 449 (1893) 4, 13, 26,

27, 31

Jackson, Zz parte, 96 U.S. 727 (1877)... 4, 6, 7, 14, 35

Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961). 24

Katzenbach v. McClung, 379 U.S. 294 (1964). 40

Kois v. Wisconsin, 408 U.S. 229 (1972). 21

Lamont v. Postmaster General, 381 US. 301

EES OSS Sapte Seine 38

Leo Sheep Co. v. _ United States, 440 US. 66%

EES 25

Lewis V. United States, 348 US. 419 (1955). 35

Lovell v. City of Griffin, 303 U.S. 444 (1938). 45

Lynch v. Blount, 404 U.S. 1007 (1972), aff 330

F. Supp. 689 (S.D.N.Y. 1971)... b-antnenememnia 38

Cases—Continued: Page

Marchetti v. United States, 390 U.S. 39 (1968) 35

Metromedia, Inc. v. San Diego, 4538 U.S. 490

(1981) 17, 42, 43

Meyer Vv. Grant, No. 87-920 (June 6, 198%) 16, 40

Miller v. California, 413 U.S. 15 (1973) 29

NLRB v. Catholic Bishop, 440 U.S. 490 (1979) 28

NLRB v. Retail Store Employees Union, Local

1001, 447 U.S. 607 (1980) .... — 19

New Jersey State Lottery Comm'n V. United

States, 491 F.2d 219 (3d Cir. 1974), vacated and

remanded, 420 U.S. 371 (1975) | 32

New York State Broadcasters Ass'n Vv. United

States. 414 F.2d 990 (2d Cir. 1969), cert. denied,

396 U.S. 1061 (1970) 32, 43

New York Times Co. Vv. Sullivan, 876 U.S. 254

(1964) .... 23

Ohralik v. Ohio Stete Bar Ass'n, 436 U.S. 447

(1978) 16, 17, 19

Oklahoma Telecasters Ass'n V. Crisp, 699 F.2d

490 (10th Cir. 1983), rev'd sub nom. Capitel

Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) 11

Original Cosmetics Products, Inc. v. Strachan, 459

F. Supp. 496 (S.D.N.Y. 1978), aff'd mem., 603

F.2d 214 (2d Cir.), cert. denied, 444 U.S. 915

(1979) 39

Otis v. Parker, 187 U.S. 606 (1903) 35, 37

Outpost Development Corp. V. United States, 414

U.S. 1105, aff’'e 369 F. Supp. 399 (C.D. Cal.

1973) 38

Perez v. United States, 402 U.S. 146 (1971) 10

Phalen v. Virginia, 49 U.S. (8 How.) 168 (1850). 3, 33,

Pittsburgh Press Co. V. Pittsburgh Comm'n on

Human Relations, 413 U.S. 377 (1973) 19, 20, 30,

31, 43, 44

Posadas de Puerto Rico Assocs. V. Tourism Co.,

478 U.S. 328 (1986) , passim

Princess Sea Indus., Inc. Vv. State, 97 Nev. 534,

625 P.2d 281 (1981), cert. denied, 456 U.S. 926

(1982) 41

vil

Cases—Continued: - Page

Public Clearing House V. — 194 U.S. 497

RE ARIES ae Sonne een eae ae eae ae 34, 38

Queensgate Investment Co. v. Liquor Control

Comm'n, 69 Ohio St. 2d 361, 433 N.E.2d 138,

appeal dismissed, 459 U.S. 807 (1982) ....... 31,41

Rd. Liquor Stores v. Evening Call Pub. Co., 497

CE | 41

R.MJ., In re, 455 U.S. 191 (1982) ......................... 16

Rapier, In re, 143 U.S. 110 (1892) a

Regan Vv. Time, Inc., 468 U.S. 641 (1984) 45

Republic Entertainment, Inc. Vv. Clark County

Liquor & Gaming Licensing Bd., 99 Nev. 811,

672 P.2d 634 (1983) 41

S&S Liquor Mart, Ine. Vv. Pastore, 497 “A2a 729

(RI. 1985) oa 41

San Francisco Arts & Athletics, fue. Vv. United

States Olympic Comm., No. 86-270 (June 25,

era. Liars aoa 17

South Carolina v. Baker, No. 94, Orig. —_ 20,

1988) ee 36

Stone Vv. Mississippi, 101 US. 814 (1879) ae ‘ 3, 34

Third National Bank v. Impac Ltd., 432 U.S. 312

(1977) FRE AN Goal cot tegen Te ESAS toe ee a 24

United States v. Hawes, 529 F.2d 472 (5th Cir.

1976) ....... 40

United States v. ‘Hunter, 178 F. 2d 1019 (7th Cir. ),

cert. denied, 414 U.S. 857 (1973) —.... ............ 40

United States v. Noelke, 1 F. 426 (C.C.S.D.N.Y.

1880) 4,6

United States v. Politzer, 59 F. 273 ( N. D. Cal.

1893) 27

United States v. 12 200-Ft Reels of Super 8MM.

Film, 413 U.S. 123 (1973). 28-29

United States er rel. Milwaukee Social Democratic

Publishing Co. Vv. Burleson, 255 U.S. 407

aaa 38

United States Postal Service ' v. “Athena ‘Products,

Ltd., 654 F.2d 362 (5th Cir. 1981), cert. denied,

456 U.S. 915 (1982) : 39

United States Postal Service v. ‘Beamish, 166 F. 24

804 (3d Cir. 1972) RID eo ee 39

vill

Cases—Continued: Page

United States Postal Service v. Council of Green-

burgh Civie Ass'ns, 453 U.S. 114 (1981)... 34

Valentine v. Chrestensen, 316 U.S. 52 (1942)... 38

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980)... 19

Virginia Vv. Tennessee, 148 U.S. 503 (1898) 24

Virginia State Bd. of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 425 U.S. 748

(1976) .. . Set 16, 17, 19, 38, 41

Walz v. Tar Commission, 397 US. 664 (1970). 46

Westfall v. United States, 274 U.S. 256 (1927). 43

Wickard v. Filburn, 317 U.S. 111 (1942) 40

Zauderer Vv. Office of oe Counsel, 471

U.S. 626 (1985) ieiiniciaanon an 18

Constitution and statutes:

U.S. Const. :

Art I, § 8:

Cl. 3 (Commerce Clause) ........ ........... 8, 14, 40

Cl. 7 (Postal Clause) .. Se 6M

Amend. I Stila a

Amend. V (Due Process Clause) a 11

Act of Mar. 2, 1827, ch. 61, § 6,4 Stat. 238... 3

Act of July 27, 1868, ch. 246, § 13, 15 Stat. 196 4

Act of June 8, 1872, ch. 335, § 149, 17 Stat. 302 |

Act of July 12, 1876, ch. 186, § 2 19 Stat. 90 (Rev.

Stat. § 3894 (2d ed. 1878)) .................. lies 4,6

Act of Mar. 2, 1895, ch. 191, § 1, 28 Stat. 963 eae s

Anti-Lottery Act of 1890, ch. 908, § 1, 26 Stat. 465

(Rev. Stat. § 3894 (Supp. 2d ed. 1891)) ........ passim

Charity Games Advertising Clarification Act of

1988, Pub. L. No. 100-625 (Nov. 7, 1988) &, 36, 6a-9a

§2 ner ae 8, Ga-Ra

§ 2(a) ......... ea EPS 5 ee eae re ee ceveeeeee, GO-78

§ 5 9, 9a

Classification Act of 1879, ch. 180, 20 Stat. 855

Ls 68 STI 5

§ 10, 20 Stat. 359 ) 5

Communications Act of 1934, “" 652, 418 Stat.

1064, 47 U.S.C. (& Supp. III) 151 et seq. .. 27, 28

Statutes—Continued : Page

Indian Gaming ~~ Act, Pub. L. No. 100-

497 (Oct. 17, 1988) .. aan | iets 9, 36

§ 21.. SE SE RL RRR 9

Organized Grime Control Act of 1970, Pub. L. No

91-452, 84 Stat. 922.929 (Preamble, 18 U.S.C.

RRC hee Sa a . 33

Radio Act of 1927, ch, 169, 44 | Be 28

88 U.S.C. 1902..................... ..... att dna! oo coty 10, 14, 42, la

18 U.S.C. 1302 ... i ———« ~~

18 U.S.C, — =I IS Sa ATS Ns 8 9

18 U.S.C. 13038 gid otek es 10, 2a-3a

18 U.S.C, 1304 aes sce 10, 27, 28, 32, 438

| pe att MT SS 10

EE ET Ee ar i tes 10

18 U.S.C, 1307 : &, 9, 32, 36, 44, 3r-da

18 U.S.C. (& Supp. IV) 1955 ...... iailiseittgtbicaes. ie 40

39 U.S.C. 3001 _. pas a 6

39 U.S.C. (& Supp. IV) 3005 sits 10, 12, 38, 4a-Ga

39 U.S.C. 3007 a , 10, 38, 39

Miscellaneous:

H. Asbury, Sucker’s Progress (1988) ss 5, lla

Blakey & Kurland, The Development of the Fed-

eral Law of Gayibling, 63 Cornell L. Rev. 923

(1978) ..... cus 2,3, 6,8

21 Cong. Rec. (1890) :

p. 8706... . < 5

p. 8710 6

p. 8711 5

p. 8712 faa eo re . 6,26

p. 8714 5

pp. 8714-8717 5

p. 8717 5, 25

p. 8721. 5

76 Cong. Rec. 5204 (1933) vane 28

134 Cong. Rec. (1988) :

pp. H3645-H3646 (daily ed. May 25) 9

p. H10445 (dailyed.Oct.19) 37

pp. H10445-H10446 (daily ed. Oct. 19) 9

Miscellaneous—Continued : Page

pp. 816317-S16319 (daily ed. Oct. 14) 8

p. 816318 (daily ed. Oct. 14) ? tae 9

p. 816319 (daily ed. Oct. 1“) a wee 37

Senet Mail Manual (1988) ......... near 9a-10a

Exclusion of Lotteries from Postal Facilities, 17

Op. Att’y Gen. 77 (1881) .................... icgiadesiiatloan 5

J. Ezell, Fortune's Merry Wheel (1960) ae | TF

H.R. Conf. Rep. 2106, 72d Cong., 2d Sess. (1933) .. 28

H.R. Conf. Rep. 1918, 75d Cong., 2d Sess. (1934) 28

H.R. Rep. 826, 48th Cong., Ist Sess. (1884) 7 6

H.R. Rep. 2678, 19th Cong., Ist Sess. (1886) 6

H.R. Rep. 787, 50th Cong., Ist Sess. (1888)... 6

H.R. Rep. 787, 50th Cong., Ist Sess. Pt. 2 (1888). 6

H.R. Rep. 221, 72d ( ong., Ist Sess. (1932) 28

H.R. Rep. 95-1517, 93d Cong., 2d Sess. (19741)... 36, 44

H.R. Rep. 100-557, 100th Cong., 2d Sess. Pt. 1

(1988) Seas &, 9, 37

Jackson & Jeffries, Commercial Speech: Economic

Due Process and the First Amendment, 65 Va.

Si i <I 42

Lotteries—Non-Mailable Matter, 18 Op. Att’ y Gen.

RI ee ae 5

Lottery Cireulars, 15 Op. “Att'y Gen. 203 (1877) 4

National Inst. of L. Enforcement and Crim. Just.,

U.S. Dep’t of Justice, The Development of the

Law of Gambling: 1776-1976 (1977)...............2, 6,33

President Nixon's Message on Organized Crime,

H.R. Doc. 91-105, 91st Cong., Ist Sess. (1969). 33

President's Comm'n on Organized Crime, Interim

Report to the President and the Attorney Gen-

eral—The Cash Connection: Organized Crime,

Financial Institutions, and Money Laundering

RSENS: SEPA a SARIS a eee eareoeencten 33

President's Comm'n on Law Enforcement and Ad-

ministration of Justice, Task Force Report:

Organized Crime (1967) 33

7 President's Comm'n on Organized Crime: Hear-

ing on Organized Crime and Gambling (1985) 34

Report of the Postmaster-General, H.R. Exec. Doc.

1, 52d Cong., Ist Sess. Pt. 4 (1891) . 8

Miscellaneous—Continued : Page

J. Richardson, A Compilation of the Messages and

Papers of the Presidents 1789-1897, H.R. Misc.

Doe. 210, 53d Cong., 2d Sess. Pt. 9 (1898)

Rep. 233, 48th Cong., Ist Sess. (1884)

Rep. 11, 49th Cong., Ist Sess. (1886) .

Rep. 1579, 51st Cong., Ist Sess. (1890) 6,

Rep. 564, 72d Cong., Ist Sess. (1932)

Rep. 1004, 72d Cong., 2d Sess. (1932)

Rep. 1045, 72d Cong., 2d Sess. (1933).

Rep. 781, 73d Cong., 2d Sess. (1934) .

Rep. 91-617, 91st Cong., Ist Sess. (1969)

Rep. 93-1404, 93d Cong., 2d Sess. (1974) . 36

S. Rep. 100-446, 100th Cong., 2d Sess. (1988) 34, 37

BREE RB aad

Mise Doc. 57, 52d Cong., 2d Sess. (1893) 2

G. Sullivan, By Chance a Winner: The History of

Lotteries (1972) 2, 5, 6, 33, 36, 45, lla, 13a-14a

l’se of the Mails for Lottery Purposes, H.R. Exec.

Doc, 22, 46th Cong., 2d Sess. (1880) 5, 24, 45, lla-Ida

D. Weinstein & L. Deitch, The Impact of Legalized

Gambling: The Socioeconomic Consequences of

Lotteries and Off-Track Retting (1974) 2,5,7,8

Iu the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1943

MINNESOTA NEWSPAPER ASSOCIATION. INC., APPELLANT

ANTHONY M. FRANK,

POSTMASTER GENERAL OF THE UNITED STATES, ET AL.

No. 87-1956

ANTHONY M. FRANK:

POSTMASTER GENERAL OF THE UNITED STATES, ET AL.

APPELLANTS

MINNESOTA NEWSPAPER ASSOCIATION, INC.

ON APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

BRIEF FOR THE FEDERAL PARTIES

OPINION BELOW

The opinion of the district court (J.S. App. la-20a)'

is reported at 677 F. Supp. 1400.

1 Unless otherwise noted, J.S. App. refers to the jurisdictional

statement appendix in No. 87-1956.

(1)

JURISDICTION

The judgment of the district court (J.S. App. 21a-22a)

was entered on January 6, 1988. A notice of appeal (J.5.

App. 23a-24a) was filed on January 28, 1988. On March

17, 1988, Justice Blackmun extended the time within

which to docket the appeal to and including May 27, 1988,

and the appeal was docketed on that date. A notice of

appeal was filed in No. 87-1943 on January 29, 1988

(87-1943 J.S. App. 21a). On March 21 and April 6,

1988, Justice Blackmun entered orders extending the

time within which to docket the appeal in No. 87-1943

to and including May 28, 1988, and the appeal was

docketed on May 27, 1988. This Court noted probable

jurisdiction in both cases on October 3, 1988. The juris-

diction of this Court rests on 28 U.S.C. 1252.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The relevant constitutional, statutory, and regulatory

provisions are reprinted in an appendix to this brief.

App., infra, la-10a.

STATEMENT

A. Historical And Statutory Background

1. Lotteries have an ancient pedigree? In England

and during the early history of this nation. lotteries were

a popular and respectable activity. Beginning in the

Jacksonian period, however, lotteries fell into disfavor

2 The first king of Israel! was chosen by lot. 1 Samuel 10:20-21.

* See generally Blakey & Kurland, The Development of the Federal

Law of Gambling, 63 Cornell L. Rev. 923 (1978); J. Ezell, Fortune's

Merry Wheel 1-59 (1960); A. Spofford, Lotteries In American

History, 8. Mise. Doe. 57, 52d Cong., 2d Sess. 174-195 (1893) ;

National Inst. of L. Enforcement & Crim. Just., LEAA, U.S. Dep’t

of Justice, The Development of the Law of Gambling: 1776-1976,

at 500-519 (1977) [hereinafter Gambling]; G. Sullivan, By Chance

a Winner: The History of Lotteries (1972); D. Weinstein &

L. Deitch, The Impact of Legalized Gambling: The Socioeconomic

Consequences of Lotteries and Off-Track Betting 8-9 (1974).

for avariety of reasons, including “animosity toward

legislatively-created privilege, concern for efficiency in

government, distaste for fraud and corruption, and sym-

pathy for the poor upon whom the burden of the lottery

system was thought to fall.” * In fact, the dominant nine-

teenth century view was that lotteries were harmful to

society.” The states therefore began to restrict or prohibit

both private and state-run lotteries.

A major obstacle to the states’ reform effort was their

inability to regulate lotteries that operated across state

lines. Because they lacked authority to prosecute lotteries

conducted in another jurisdiction, or to regulate the use

of the mails to distribute lottery tickets and advertise-

ments, the states were forced to attack lotteries within

their borders “at the consumer level—-a difficult, expen-

sive, and unpopular task.”* The states therefore turned

to Congress for assistance.

2. Congressional restrictions on the use of the postal

service in connection with lotteries date from 1827. In

that year, Congress prohibited postmasters from serving

as lottery agents and from receiving “lottery schemes,

circulars, or tickets” free of postage. Act of Mar. 2,

1827, ch. 61, § 6, 4 Stat. 238. Forty-one years later, Con-

gress made it a crime to deposit in the mails “any letters

* Blakey & Kurland, supra, 63 Cornell L. Rev. at 927.

® See, e.9., Phalen v. Virginia, 49 U.S. (8 How.) 163, 168 (1850),

and Stone v. Mississippi, 101 U.S. 814, 818 (1879), both quoted at

pages 33-34, infra; Champion v. Ames (Lottery Case), 188 U.S. 321,

355 (1903) (“When enacting [the lineal predecessor to 18 U.S.C.

1301] Congress no doubt shared the views upon the subject of lot-

teries heretofore expressed by this court.”) ; J. Richardson, A Com-

pilation of the Messages and Papers of the Presidents 1789-1897,

H.R. Mise. Doe. 210, 53d Cong., 2d Sess. Pt. 9, at 81 (1898) (Special

Message to the Senate and House of Representatives from President

Harrison) (“It is not necessary, I am sure, for me to attempt to

portray the robbery of the poor and the widespread corruption of

public and private morals which are the necessary incidents of these

lottery schemes.”’).

* Blakey & Kurland, supra, 63 Cornell L. Rev. at 931.

or circulars concerning lotteries, so-called gift concerts, or

other similar enterprises offering prizes of any kind on

any pretext whatever.” Act of July 27, 1868, ch. 246,

$13, 15 Stat. 196. In 1872, Congress passed legislation

prohibiting the mailing of letters or circulars concerning

“illegal” lotteries. Act of June 8, 1872, ch. 335, § 149,

17 Stat. 302. Four years later, Congress struck that

limitation, thereby extending the prohibition to all lot-

teries, including those chartered by state legislatures.

Act of July 12, 1876, ch. 186, § 2, 19 Stat. 90 (codified

at Rev. Stat. § 3894 (2d ed. 1878)). See Horner Vv.

United States, 147 U.S. 449, 456, 466 (1893); United

States v. Noelke, 1 F. 426, 428-429 (C.C.S.D.N.Y. 1880) ;

Lottery Circulars, 15 Op. Att’y Gen. 208, 203-204

(1877).

The 1876 Act was soon challenged on the ground that

it violated the First Amendment. This Court rejected

that claim in Ex parte Jackson, 96 U.S. 727 (1877),

which involved a prosecution for depositing in the mails

a letter that contained a circular offering prizes in a

lottery. The Court explained that “the object of Congress

has not been to interfere with the freedom of the press,

or with any other rights of the people; but to refuse its

facilities for the distribution of matter deemed injurious

to the public morals.” /d. at 736. Analogizing the 1876

Act to a similar 1873 law prohibiting the use of the mails

to distribute obscene materials, the Court found that

“lt]he same inhibition has been extended to circulars

concerning lotteries, —institutions which are supposed to

have a demoralizing influence upon the people.” Ibid,

And the Court coneluded that “we have no doubt” that

it was lawful for Congress to do so. Id. at 737.

The 1876 Act was nonetheless widely viewed as an

ineffective weapon against lotteries. Its chief inadequacy

was that it did not to apply to lottery advertisements

contained in newspapers.’ That shortcoming made the

7 Lotteries often used newspaper advertisements to promote their

games, since newspapers enjoyed second-class mailing privileges and

Act particularly ineffective against the powerful Louisi-

ana Lottery, the only lottery still operating legally in

1890 when the predecessor to the statute at issue in this

case was enacted." The Louisiana Lottery operated na-

tionwide and used the mails as its principal means of

obtaining revenues from the public in other states’

deriving more than 90% of its multi-million dollar .-

come from out-of-state bettors.” Because the Attorney

General had concluded that the 1876 Act did not apply

to newspapers,"' however, that law did not prevent the

were less expensive to distribute than letters containing lottery

circulars, which would have been treated as first-class material.

21 Cong. Ree. 8714 (1890) (Rep. Evans); see the Classification Act

of 1879, ch. 180, §§ 7 & 10, 20 Stat. 358, 259.

* Exclusion of Lotteries from Postal Facilities, 17 Op. Att'y Gen.

77, 77 (1881); see 21 Cong. Rec. 8714-8717 (1890) (summary of

state laws prohibiting lotteries). The Louisiana Lottery was char-

tered in 1868 ostensibly to raise funds for Charity Hospital in

New Orleans. In fact, however, the lottery was directed by a

New York gambling syndicate, which had bribed Reconstruction

Era state legislators in order to obtain a charter granting the lot-

tery a monopoly position within the state. H. Asbury, Sucker's

Progress 85 (1938); J. Ezell, supra, at 242-244: G. Sullivan, By

Chance a Winner: The History of Lotteries 52-56 (1972).

* Use of the Mails for Lottery Purposes, H.R. Exec. Doe. 22, 46th

Cong., 2d Sess. 16 (1880) (Letter from Postmaster-General Key to

House of Representatives) ; id. at 27-28 (Letter from New York

Post Office General Superintendent Forrester to New York

Postmaster James (Oct. 14, 1879)); id. at 28 (Letter from

McMillen to Assistant Attorney General

. 4, 1879)); id. at 28-29 (Letter from New Orleans

Millen to Postmaster-General Key (Nov. 12, 1879)) ;

. 8706 (1890); id. at 8711 (statement of Rep. Wilkin-

at 8717 (statement of Rep. Hitt); id. at 8721 (statement

of Rep. Price) ; J. Ezell, supra, at 251.

Cong.

228

21 Rec. 8706 (1890) (Rep. Moore); J. Ezell, sxpra, at

251; D. Weinstein & L. Deitch, supra, at 11.

'"' Lotteries—Non-Mailable Matter, 18 Op. Att'y Gen. 206, 309

(1885). The Attorney General concluded that a newspaper did not

become a “circular” by publishing an advertisement. /bid.

Louisiana Lottery from soliciting customers through

newspaper advertising or other promotional devices."*

3. For several years, Congress considered the ques-

tion whether the 1876 Act should be amended to include

newspapers in order to curtail the nationwide operation

of the Louisiana Lottery." During that period. there

was considerable debate on the question whether applying

the 1876 Act to newspapers would violate the First

Amendment. Supporters of the amendment argued that

it was constitutional under this Court’s decision in Ex

parte Jackson “' and noted that newspapers generally did

not oppose extending the 1876 Act to include their publi-

cations." Opponents claimed that Ex parte Jackson did

not sanction the exclusion of newspapers from the mails,

and that excluding newspapers from the mails because

they published lottery advertisements would establish a

precedent that in the future could be used to exclude from

the mails commentary that other Congresses found detri-

meital to the public."* Supporters of the amendment ul-

12 Examples of contemporary advertisements and prize lists are

found in Appendix B to this brief and at various pages in G.

Sullivan, supra. See also United States v. Noelke, 1 F. at 428-429

(describing a similar advertisement).

3 See generally J. Ezell, supra, at 251-263; Gambling 513-518;

Blakey & Kurland, supra, 63 Cornell L. Rev. at 937-940.

1% See S. Rep. 1579, Sist Cong. Ist Sess. (1890); S. Rep. 233,

48th Cong., Ist Sess. 1 (1884); S. Rep. 11, 49th Cong., Ist Sess. 12

(1886); H.R. Rep. 2678, 49th Cong., Ist Sess. 1 (1886); H.R. Rep.

787, 50th Cong., Ist Sess. Pt. 2, at 2-4 (1888) (Views of the Minor-

ity); 21 Cong. Rec. 8710 (1890) (Rep. Caldwell); id. at 8712 (Rep.

Wilkinson ).

See S. Rep. 1579, supra, at 3 (“Many of the ablest and most

influential journals now advocate the denial of mail facilities of any

publisher who will admit a lottery advertisement to his columns,

and it is believed that an enactment by Congress to this effect will

meet with the almost unanimous approval of papers of known

standing and ability.”).

1 See S. Rep. 233, supra, at 13-15 (Views of the Minority); H.R.

Rep. 826, 48th Cong., Ist Sess. 2-4 (1884); H.R. Rep. 2678, supra,

at 4-6 (Views of the Minority); H.R. Rep. 787, supra, at 1.

‘

timately carried the day, and the Fifty-First Congress

enacted the Anti-Lottery Act of 1890, ch. 908, £1, 26

Stat. 465 ‘codified at Rev. Stat. § 3894 (Supp. 2d ed.

1891)), the lineal predecessor to the statute at issue in

this case. In order to deny the Louisiana Lottery the use

of the mails to attract customers, the Act outlawed the

mailing of “any newspaper, circular, pamphlet, or pub-

lication of any kind containing any advertisement of any

lottery or gift enterprise of any kind offering prizes de-

pendent upon lot or chance, or containing any list of

prizes awarded at the drawings of any such lottery or

gift enterprise, whether said list is of any part or of all

of the drawing.”

It was not long before the constitutionality of the new

statute was also challenged, and in Jn re Rapier, 143

U.S. 110 (1892), this Court upheld the extension of the

prohibition on mailing lottery advertisements and prize

lists to newspapers. In that case, two defendants were

convicted under the Act for mailing a newspaper con-

taining an advertisement and a circular about the Louis-

iana Lottery. Relying on Ex parte Jackson, supra, this

Court rejected the claim that the Act violated the First

Amendment. As the Court explained (143 U.S. at 134-

135) :

The circulation of newspapers is not prohibited, but

the government declines itself to become an agent in

the circulation of printed matter which it regards

as injurious to the people. The freedom of commu-

nication is not abridged within the intent and mean-

ing of the constitutional provision unless Congress

is absolutely destitute of any discretion as to what

shall or shall not be carried in the mails, and com-

pelled arbitrarily to assist in the dissemination of

maters condemned by its judgment, through the gov-

ernmental agencies which it controls. That power

may be abused furnishes no ground for a denial of

its existence, if government is to be maintained at

all.

Accord Horner v. United States (No. 1), 143 U.S. 207,

213 (1892): Horner v. United States (No. 2), 143 USS.

570, 578 (1892) (both relying on Jn re Rapier).

Although the Louisiana Lottery ceased its operations

in that state in 1893,"" it set up new headquarters in

Honduras and used a Florida express company for com-

munications."* When Congress realized that the Louis-

iana Lottery had not yet been shut down, it passed the

Act of Mar. 2, 1895, ch. 191, 28 Stat. 963 (codified as

revised at 18 U.S.C. 1301), which made it a crime to

transport lottery tickets in interstate commerce. The

constitutionality of that Act was also challenged, and thi:

Court once again upheld the statute in Champion v.

Ames (Lottery Case), 188 U.S. 321 (1903), this time

over a claim that the Act exceeded Congress’s power un-

der the Commerce Clause, Art. I, § 8, Cl. 3.

4. Congress has re-examined this regulatory scheme on

several occasions in recent years. In 1975, following the

rebirth of state-run lotteries in New Hampshire, New

Jersey, and New York, Congress excluded from the

scope of Section 1302 advertisements and prize lists in a

newspaper published in a state which has a state-

conducted lottery. 18 U.S.C. 1307. And only this year,

Congress enacted additional exemptions for lotteries that

are not illegal under state law and are conducted by a

charitable organization or by a commercial organization

as an occasional and ancillary promotional activity.

Charity Games Advertising Clarification Act of 1988,

Pub. L. No. 100-625, §2 (Nov. 7, 1988). See H.R. Rep.

100-557, 100th Cong., 2d Sess. Pt. 1, at 1 (1988); 134

Cong. Rec. $16317-S16319 (daily ed. Oct. 14, 1988) ; id.

17 Some observers have concluded that the Anti-Lottery Act of

1890 was instrumental in bringing about the demise of the Louisi-

ana Lottery. J. Ezell, supra, at 263-264; Blakey & Kurland, supra,

63 Cornell L. Rev. at 940: see Report of the Postmaster-General,

H.R. Exec. Doc. 1, 52d Cong., Ist Sess. Pt. 4, at 17 (1891).

J. Ezell, supra, at 267-268; G. Sullivan, supra, at 58; D.

Weinstein & L. Deitch, supra, at 12.

at H10445-H10446 ‘daily ed. Oct. 19, 1988). Those

amendments do not take effect for 18 months, however,

in order to give the states an opportunity to prohibit

lotteries from operating or advertising. §5; H.R. Rep.

100-557, supra, Pt. 1, at 3; 134 Cong. Rec. 816318

(daily ed. Oct. 14, 1988). Congress also recently

enacted the Indian Gaming Regulatory Act, Pub. L. No.

100-497 (Oct. 17, 1988). Section 21 of that law states

that Section 1302 shall not apply to any gaming con-

ducted by an Indian tribe pursuant to the Act.

Notwithstanding these exceptions, the basic prohibition

originally enacted as the Anti-Lottery Act of 1890 sur-

vives as 18 U.S.C. 1302 para. 5. When applicable, that

provision makes it a crime knowingly to mail “{a]ny

newspaper, circular, pamphlet, or publication of any kind

containing any advertisement of any lottery, gift enter-

prise, or scheme of any kind offering prizes dependent

in whole or in part upon lot or chance,” or “any list of

the prizes drawn or awarded” by means of any such

Even if the 1988 Act took effect immediately, it would not

render this case moot, for several reasons. First, the district court's

judgment held the prize list clause invalid in its entirety, and would

therefore prevent the government from enforcing that provision of

Section 1302 against an illegal numbers racket. The 1988 Act did

not modify the terms or meaning of the prize list clause as it applies

to such illegal lotteries. Second, the 1988 Act does not apply to non-

exempt commercial lotteries, such as casinos, since those enterprises

do not conduct lotteries simply as a “promotional activity” on a

“clearly occasional and ancillary” basis, as Section 2(a) of the 1988

Act requires. See 134 Cong. Rec. 816318 (daily ed. Oct. 14, 1988)

(“the committee wishes to make clear that no provision of {the bill}

is intended to change current law as it applies to professional gam-

bling activities”); id. at $16319 (same); id. at H3646 (daily ed.

May 25, 1988) (House debate and passage of an amendment making

clear that gambling casinos are not included within the new exemp-

tion). Finally, the 1988 amendments do not exempt lists of prizes

awarded by state-run lotteries when published by a newspaper in a

state that does not conduct such a lottery.

lottery or similar enterprise.” Under complementary

provisions of the Postal Code, any material that is ex-

cluded from the mail under 18 U.S.C. 1302 is deemed

to be “nonmailable” and subject to seizure. 39 U.S.C.

3001. Other provisions authorize the Postal Service to

stop the delivery of lottery-related responses for. or the

payment of money orders to, a person conducting a lot-

tery, 39 U.S.C. (& Supp. IV) 3005; after an administra-

tive proceeding, to return to a sender mail addressed to

any person engaged in a lottery or scheme involving

fraud or false representations, ibid.; and to sue in fed-

eral court and, on a showing of probable cause, obtain a

preliminary injunction detaining the incoming mail of a

person alleged to be engaged in a lottery or similar

scheme, pending the conclusion of such administrative

proceedings, 39 U.S.C. 3007.

B. Proceedings Below

Appellee Minnesota Newspaper Association, Inc., is an

organization of general and special interest newspapers

published in Minnesota. Appellee’s members distribute a

significant portion of their circulation through the mails.

J.A. 3. Minnesota law allows non-profit charitable r-

ganizations to operate gaming activities for fund-raising

purposes. J.S. App. la-2a. Appellee’s members wanted

to publish advertisements and news stories about such

lotteries, but were afraid to do so because of uncertainty

about the meaning of 18 U.S.C. 1302, and 39 U.S.C. (&

Supp. IV) 3001 and 3005, and because of warnings they

had received from local postal inspectors that they could

be prosecuted for mailing lottery-related materials. J.S.

** Related provisions of Title 18 include: Section 1301, which

prohibits the importation or transportation of lottery tickets, adver-

tisements, or lists of prizes; Section 1303, which prohibits any

Postal Service officer or employee from acting as a lottery agent;

Section 1304, which prohibits broadcasters from broadcasting lot-

tery advertisements, prize lists, or information; Section 1305, which

creates a special exemption for fishing contests; and Section 1306,

which prohibits financial institutions from selling lottery tickets.

App. 2a-3a. Appeliee therefore brought this action to

challenge the constitutionality of those laws under the

First Amendment and Due Process Clause.

The district court granted partial summary judgment

in favor of each party. The court first held that lottery

advertisements (including advertisements containing

prize lists) are “commercial speech,” and that the ad-

vertising restrictions in Section 1302 are valid under

Central Hudson Gas & Elec. Corp. vy. Public Service

Comm'n, 447 U.S. 557 (1980), and Posadas de Puerto

Rico Assocs. vy. Tourism Co., 478 U.S. 328 (1986). J.S.,

App. 7a-13a. Although the court found the advertise-

ments that appellee’s member newspapers sought to pub-

lish concerned lawful activity that is not inherently mis-

leading (id. at 8a), the court ruled that the statutory

restrictions are valid because they directly advance two

substantial governmental interests: Ci :igress’s interest

in preserving the states’ power to prohibit or limit

gambling within their borders, and Congress’s interest in

restricting the interstate growth of private lotteries in or-

der to reduce the th.eat of organized criminal involve-

ment in gambling. /d. at 8a-13a. The court also held

that Section 1302 does not apply to general news reports

or editorial commentary about lotteries. Those mate-

rials, the court held, can be distributed through the mails.

J.S. App. 16a.

Nonetheless, the court concluded that the prize list

clause of Section 1302 is unconstitutional. J.S. App. 13a-

15a. The court recognized that a list of prize winners

is an effective promotional device for a lottery, but ruled

that such a list is not commercial speech unless it is part

of an advertisement. /d. at 13a-l4a. Because Section

1302 independently forbids the mailing of advertisements

promoting lotteries, the court held that the prize list

clause was designed to restrict the publication of prize

lists in noncommercial speech and was invalid unless the

restriction was narrowly tailored to serve a compelling

governmental interest. /d. at 14a. Finding that the in-

.12

terests promote: by Section 1302 were not compelling,

the court held t.e prize list clause was unconstitutional,

but could be fevered from the remainder of the statute.

Id. at 14a-l5a, 16a. The court acknowledged that its

holding was inconsistent with this Court’s decision in /n

re Rapier, but concluded that the rationale of that deci-

sion had been superseded by this Court’s more recent

First Amendment decisions. J.S. App. 15a."

The district court accordingly entered a judgment de-

claring, inter alia, that “the restrictions in 18 U.S.C.

$ 1302, and its implementing regulations, on the mailing

of lists of prizes awarded from a lottery are unconstitu-

tional.” J.S. App. 20a. The court’s judgment also

permanently enjoined appellants “from further enforce-

ment of the restrictions on prize lists.” /bid.; id. at 21la-

22a.

SUMMARY OF ARGUMENT

1. The prize list clause in 18 U.S.C. 1302 applies only

to prize lists that are commercial speech. The district

court erred in equating advertisements and commercial

speech since that equation is both overinclusive and un-

derinclusive. Political commentary, which is not com-

mercial speech, can be presented in an advertisement. On

the other hand, a draft contract, which surely is com-

mercial speech, does not resemble an advertisement. The

correct analysis for determining whether such materials

are commercial speech is to examine the subject matter

of the expression (i.e., whether It promotes or advances

a commercial transaction! ; the relationship between the

speaker, the subject matter, and his audience (i.e.,

whether the speaker has a financial interest in the com-

*! The court also rejected appellee’s equal protection challenge to

the advertising restriction of 18 U.S.C. 1302, on the ground that

the distinctions complained of were rationally related to legitimate

government interests. J.S. App. 17a-19a. Finally, the court ruled

that 39 U.S.C. (& Supp. IV) 3001 and 3005 could not be applied to

restrict the mailing of newspapers containing prize lists in news

reports. J.S. App. 19a.

mercial transaction or in its promotion); and the form

that the speech takes ‘i... whether it is an advertise-

ment), instead of relying on the last criterion alone.

The text, background, and purposes of the Anti-Lottery

Act of 1890 show that the prize list clause was designed

to reach only what would today be called commercial

speech. The Act was passed to close the mails to the

Louisiana Lottery, a large-scale gambling syndicate and

the only legal lottery still operating in 1890. Prize lists

and advertisements were sometimes separately dis-

tributed by lotteries, and the two clauses were designed

to capture both types of promotional materials. This

Court ruled in Horner v. United States, 147 U.S. 449

(1893), that the prize list clause covers such lists when

distributed for commercial purposes. It was that type of

expression that Congress sought to reach by the Act, not

news stories. That construction of the Act also avoids

the constitutional issues raised by the district court’s

interpretation of the prize list clause.

2. Because Section 1302 prohibits the mailing of only

what would today be called commercial speech, it is con-

stitutional under the standards this Court has announced

for determining the permissible bounds of the regulation

of commercial speech. The Act reasonably and directly

promotes the same type of interests this Court found

legitimate in Posadas. By limiting the commercial pro-

motion of lotteries, the act protects the policies of those

states that have forbidden private lotteries within their

borders. And by restricting the growth of private lot-

teries, it also reduces the threat of organized criminal

infiltration of gambling enterprises and makes it easier

for states that permit lotteries to police that activity.

The act therefore advances principles of federalism by

assisting states that have determined that private lot-

teries are contrary to public policy to implement that

judgment. Section 1302 directly furthers those interests,

because it was reasonable for Congress to believe that

restricting the promotion of lotteries through the mails

would reduce the consumer demand for that activity.

Finally, the restrictions imposed by that act are no more

extensive than necessary, because they are limited to

commercial speech. In sum, the Act excludes from the

maiis only a narrow category of commercial speech that

plays a direct and integral role in the conduct of an ac-

tivity that Congress and the states may discourage or

suppress due to its potentially injurious effect on the

public.

ARGUMENT

THE RESTRICTIONS IN 18 U.S.C. 1502 ON THE USE

OF THE MAILS TO PROMOTE LOTTERIES ARE A

LAWFUL REGULATION OF COMMERCIAL SPEECH

There is a longstanding federal policy against the use

of the mails to promote private lotteries. It is illegal to

send tickets for private lotteries in interstate or foreign

commerce, 18 U.S.C. 1301, or to distribute through the

mails lottery tickets or publications containing adver-

tisements about lotteries or lists of the prizes they award.

18 U.S.C. 1302. This Court upheld the constitutionality

of this regulatory scheme nearly a century ago in three

separate decisicns. The Court twice rejected First

Amendment challenges to the predecessor versions of Sec-

tion 1302 in Ev parte Jackson, 96 U.S. 727 (1877), and

In re Rapier, 143 U.S. 110 (1892), and the Court turned

aside a Commerce Clause challenge to the predecessor to

Section 1301 in Champion v. Ames (Lottery Case), 188

U.S. 321 (1903).

The district court upheld against « First Amendment

claim the clause in Section 1302 that prohibits the dis-

tribution through the mails of publications that contain

lottery advertisements. The court held that the adver-

tisement clause is a reasonable restriction on the use of

the mails to promote lotteries.** At the same time, how-

ever, the court struck down as facially unconstitutional

the parallel clause in the law that prohibits the distribu-

tion through the mails of publications containing lists of

prizes awarded by lotteries. The court ruled that the

prize list clause was designed to and in fact would re-

strict the distribution through the mails of news reports

about lotteries.*' In our view, the court correctly upheld

the advertisement clause, but erred by striking down the

prize list clause, since it misinterpreted the scope of the

latter. When properly construed, the prize list clause is

a reasonable regulation of the commercial promotion of

lotteries.

I. SECTION 1302 REGULATES THE DISTRIBUTION

THROUGH THE MAILS OF COMMERCIAL SPEECH

PROMOTING LOTTERIES

A. “Commercial Speech” Is Not Limited To Traditional

Forms Of “Advertising” And Embraces Other Types

Of expression That Are Integrally Related To A

Commercial Transaction

1. The threshold issue in this case is what type of

speech Congress sought to regulate through 18 U.S.C.

1302, since not all forms of expression are entitled to

equal constitutional protection. Speech that is obscene or

libelous, for example, is not protected by the First

Amendment. Chaplinsky v. New Hampshire, 315 US.

568, 572 (1942). By contrast, political debate and com-

= The United States District Court for the District of Columbia

has also upheld the advertisements clause over a similar First

Amendment challenge. Aimes Publications, Inc. v. United States

Postal Service, Civ. No. 86-1434 (D.D.C. Feb. 23, 1988).

* Appellee did not urge the district court to read the prize list

clause in that manner; it only expressed uncertainty about the scope

of the act. Plaintiff's Memorandum in Response 13 (dated Sept. 9,

1987). The Minnesota Civil Liberties Union, appearing as amicus

curiae, argued that the prize list clause was applicable to news

stories. Amicus Minnesota Civil Liberties Union’s Memorandum in

Support of Plaintiff's Motion for Summary Judgment 7 (dated Aug.

28, 1987).

mentary on matters of public concern fall within the

core idea of expression protected by the First Amend-

ment, and the government may not prohibit such speech

absent a compelling justification and a precise limitation

on what is forbidden. Meyer v. Grant, No. 87-920 (June

6, 1988): Boos v. Barry, No. 86-803 (Mar. 22, 1988).

What has come to be known as commercial speech falls

between those boundaries.

Commercial speech is entitled to some protection due

to its informational value in a free market economy. See

In re R.M.J., 455 US. 191, 200 n.11 (1982) (“The com-

mercial speech doctrine is itself based in part on certain

empirical assumptions as to the benefits of advertising.”) :

Central Hudson Gas & Elec. Corp. v. Public Service

Comm'n, 447 U.S. 557, 563 (1980) (“The First Amend-

ment’s concern for commercial speech is based on the

informational function of advertising.”); Virginia State

Bd. of Pharmacy v. Virginia Citizens Consumer Council.

425 U.S. 748 (1976). Nevertheless, the application of

the First Amendment to commercial speech “has been

recognized generally as a substantial extension of tradi-

tional free-speech doctrine which poses special problems

not presented by other forms of protected speech.” Fried-

man V. Rogers, 440 U.S. 1, 10 n.9 (1979). Commercial

speech therefore occupies a “subordinate position in the

scale of First Amendment values” (Ojralik v. Ohio State

Bar Ass'n, 436 U.S. 447, 456 (1978)), and due recogni-

tion must be given to the various “commonsense” differ-

ences between commercial speech and commentary on

matters of public concern. Virginia Pharmacy Bd., 425

US. at 771 n.24.

The Court has explained that a commercial speaker

ordinarily has extensive knowledge of his product and

the market. and speech connected with commercial trans-

actions is generally calculated rather than spontaneous.

Commercial speech is therefore more easily verifiable

than classic political commentary. Commercial speech is

also more durable than political commentary, since it is

the offspring of economic self-interest, and thus is less

likely to be unduly chilled by governmental regulation.

It is also well settled that the government does not

lose its power to regulate commercial! activity it deems

harmful to the public simply because speech is a com-

ponent of that activity. Friedman v. Rogers, 440 U.S.

at 10-11 n.9; Ohralik, 436 U.S. at 456; Giboney v.

Empire Storage & Ice Co., 336 US. 490, 502 (1949).

Regulation directed at the sale of goods and services

could well be ineffectual if the government could not also

regulate the speech used in the promotion of those trans-

actions. Finally, because commercial speech occurs in

areas traditionally subject to government regulation

(such as labor relations), requiring parity of treatment

between commercial speech and political speech could di-

lute the protection afforded the latter. See Metromedia,

Ine. Vv. San Diego, 453 U.S. 490, 505 & n.12 (1981)

(plurality opinion); Central Hudson, 447 U.S. at 562-

564 & nn.5-6; Friedman v. Rogers, 440 U.S. at 10 & n.9:

Virginia Pharmacy Bd., 425 U.S. at 771-772 & n.24: id.

at 777-781 (Stewart, J., concurring): see Dun & Brad-

street, Inc. Vv. Greenmoss Builders, Inc., 472 U.S. 749,

758-763 & n.5 (1985) (plurality opinion); ef. San Fran-

cisco Arts & Athletics, Inc. v. United States Olympic

Comm., No. 86-270 (June 25, 1987), slip op. 11-18 &

n.16.

2. The district court held that the constitutionality of

the advertisement clause of 18 U.S.C. 1302 must be con-

sidered under the lower degree of protection appropriate

for commercial speech. That ruling jis correct, as shown

below. Nonetheless, the district court held that the prize

list clause of that statute is not limited to commercial

speech. Because the statute contains separate clauses

prohibiting the mailing of lottery advertisements and

lists of prizes, and because a prize list contained in an

advertisement would be independently covered by the ad-

vertisement clause, the court reasoned that the prize list

clause must apply to noncommercial speech, such as news

stories about lottery winners. J.S. App. 13a-l4a. The

court therefore concluded that the prize list clause must

be measured against the higher standard of review that

is appropriate for noncommercial speech. Id. at 14a-15a.

The fatal flaw in the district court’s reasoning is the

unstated assumption that “commercial speech” is exactly

coterminous with “advertising.” Relying on that assump-

tion, the court reasoned that a law directed at a specific

type of expression (here, speech designed to promote a

lottery) can be measured against the limited standard of

protection afforded to commercial speech only if the tar-

geted expression is contained in what would ordinarily

be termed an “advertisement.” That assumption, how-

ever, which underlies the district court’s entire analysis

of the prize list clause in Section 1302, is erroneous.

Once that assumption is removed, it is evident that both

the advertisement and prize list clauses are aimed at

slightly different but closely related forms of commercial

speech. The prize list clause is therefore valid for the

same reasons that support the advertisement clause.

Most of the_Court’s commercial speech cases have in-

volved expression that would ordinarily be called “adver-

tising pure and simple.” Zauderer v. Office of Disciplin-

ary Counsel, 471 U.S. 626, 637 (1985). In those cases,

the Court has always treated such forms of expression

as commercial speech. At the same time, however, the

Court has never equated commercial speech with ad-

vertisements, and with good reason. Any such equation

would be both overinclusive and underinclusive. It would

be overinclusive because advertisements are often used

to promote political candidates or ideas, or to identify

matters of public debate and concern. For example, the

allegedly libelous advertisement in New York Times Co.

v. Sullivan, 376 U.S 254, 266 (1964), was described by

the Court as one that “communicated information, ex-

pressed opinion, recited grievances, protested claimed

abuses, and sought financial support on behalf of a move-

ment whose existence and objectives are matters of the

“19

public interest and concern.” That advertise-

was clearly not regarded by the Court as a form of

speech, and it is easy to imagine similar

examples. Equating advertising with commercial expres-

sion also would be underinclusive, since it would exclude

certain types of expression that are not ordinarily charac-

terized as advertising, but are integrally related to a

commercial transaction. A proposed contract is one ex-

ample, but there are others that also fit easily into this

category, such as “the exchange of information about

securities, corporate proxy statements, the exchange of

price and production information among competitors, and

employers’ threats of retaliation for the labor activities

of employees” (Ohralik, 436 U.S. at 456 (citations

omitted)), labor picketing designed to encourage a sec-

ondary boycott (NLRB v. Retail Store Employees Union,

Local 1001, 447 U.S. 607 (1980)), and efforts to per-

im standard-setting organization to exclude

a competitor’s product. Allied Tube & Conduit Corp. v.

Indian Head, Ine., No. 87-157 (June 13, 1988). None of

Pittsburgh Press Co. v. Pittsburgh Comm'n on Human

Relations, 413 U.S. 376, 385 (1973).* In determining

* See also, ¢.g., Posadas de Puerto Rico Assocs. Vv. Tourism Co.,

478 U.S. 328, 340 (1986); Youngs Drug Products Corp., 463 U.S.

at 66; In re R.MJ., 455 U.S. at 204 n.17; Virginia Pharmacy Bd.

425 U.S. at 762; see Central Hudson, 447 U.S. at 561 ‘commercial

speech is “related solely to the economic interests of the speaker

its audience”); Village of Schaumburg v. Citizens for a Better

444 U.S. 620, 632 (1980) (commercial speech “i

form(s) private economic decisions” and is “primarily concerned

with providing information about the characteristics and costs of

goods and services”).

whether a particular form of expression is commercial

speech, the Court has also considered such factors as

whether the speech takes the form of a commercial ad-

vertisement, whether it refers to a specific product,

whether the speaker is motivated by economic gain, and

whether the activity promoted by the expression is itself

constitutionally protected or may be forbidden due to its

injurious effects. Youngs Drug Products, 463 U.S. at 66-

67 & nn.13-14. See also Pittsburgh Press, 413 U.S. at

387-388 ‘looking to the format in which the speech ap-

pears). In a related context, the Court has explained

that the determination whether speech involves a matter

of public or private concern must focus on the “content,

form, and context” of the expression “as revealed by the

whole record.” Dun & Bradstreet, 472-U.S. at 761

(plurality opinion) (quoting Connick v. Myers, 461 U.S.

138, 147-148 (1983)).

Youngs Drug Products and Dun & Bradstreet illus-

trate the proper analysis. In Youngs Drug Products, the

Court concluded that drugstore flyers consisting pri-

marily of price and quantity information about prophy-

lacties clearly were proposals to engage in commercial

transactions and thus fit within the core notion of com-

mercial speech. In addition, however, the firm’s informa-

tional pamphlets, which not only described the firm’s

products, but also discussed family planning, veneral dis-

ease, and the use and advantages of prophylactics in pre-

venting such disease, were also deemed to be commercial

speech. The format of the pamphlets, their identification

of the speaker's particular product, and the economic mo-

tivation underlying their publication all suggested that

the pamphlets were properly considered commercial

speech. 463 U.S. at 67-68.”

23 That was true even though the pamphlets discussed important

social issues. “A company has the full panopoly of protections

available to its direct comments on public issues,” the Court ex-

plained, “so there is no reason for providing similar constitutional

protection when such statements are made in the context of com-

Similarly, Dun & Bradstreet involved the question

whether financial reports prepared by a private credit

reporting agency about private firms were matters of

public concern and therefore were entitled to the same

measure of First Amendment protection afforded to such

expression in libel actions. A plurality of this Court

concluded that, although the expression at issue did not

constitute economic or commercial speech, “many of the

same concerns that argue in favor of reduced constitu-

tional protection in those areas apply here as well.” 472

U.S. at 762 n.&. Relying upon the Court’s commercial

speech decisions, the plurality found that the credit re-

ports did not involve matters of public concern, for sev-

eral reasons: They communicated information of inter-

est solely to the credit reporting agency and its specific

business audience; they were distributed to a limited

audience; like advertising, they were unlikely to be

chilled by incidental state regulation, since they were

created for profit: they were arguably more objectively

verifiable than other forms of speech; and, finally, they

mercial transactions.” 463 U.S. at 68 (footnote omitted). See also

Central Hudson, 447 U.S. at 562-563 n.5. Cf. Kois v. Wisconsin,

408 U.S. 229, 231 (1972) (“[a) quotation from Voltaire in the

filyleaf of a book will not constitutionally redeem an otherwise

obscene publication” ).

Youngs Drug Products also stated that other factors might be

relevant in a particular case. For example, the Court noted that

expression might constitute commercial speech even if it only refers

to a generic product, because a company with a large market share

or a trade association might be able to a promote an item without

reference to brand names. 463 U.S. at 66-67 n.13. Another con-

sideration, the Court noted, is whether a publication advertised an

activity that is itself protected by the First Amendment. /d. at 67

n.14. See Posadas, 478 U.S. at 345-246 (distinguishing Carey Vv.

Population Services Int'l, 431 U.S. 678 (1977). and Bigelow v.

Virginia, 421 U.S. 809 (1975). on the ground that in those cases

“the underlying conduct was constitutionally protected and could

not have been prohibited by the State”). Finally, Youngs Drug

Products noted that expression could be commercial even if it did

not have all of the characteristics that were present in that case

463 U.S. at 66-67 n.13.

were likely to be influenced by market forces. Jd. at 762-

763.

Youngs Drug Products and Dun & Bradstreet suggest

that the key elements of commercial speech are (a) its

subject matter, i.c., whether it promotes or advances an

ordinary commercial transaction; (b) the relationship be-

tween the speaker, the subject matter, and his audience,

i.@., whether the speaker has a direct financial interest

in either the transaction or its promotion; and to a lesser

degree ‘c) its format, i.c.. whether the speech appears in

a form traditionally regarded as commercial advertising.

The first element limits the definition of commercial

speech to speech about commercial products and services,

and excludes speech about a constitutionally protected ac-

tivity, since that expression draws additional value from

the underlying activity. The second element, the financial

interest of the speaker in the good or transaction, is criti-

eal, because, as this Court has noted, a party with a

financial interest in a good or service ‘or in the promo-

tion of that item) is likely to be able to verify the ac-

curacy of the information he distributes and is less likely

to be chilled by government regulation than is a finan-

cially disinterested commentator. Finally, although the

question whether particular speech is commercial cannot

be answered simply by determining whether it is for-

mally called advertising, that factor is also relevant, be-

cause what would ordinarily be called an advertisement

is often the vehicle for the distribution of commercial

speech. The use of that format therefore counsels in

favor of treating particular speech as commercial.

B. The Prize List Clause, Like The Advertisement

Clause, Regulates Only The Use Of The Mails For

The Commercial Promotion Of Lotteries

We submit that the prize list clause of Section 1302.

when read in light of the text, background, and purposes

of the Anti-Lottery Act of 1890, should be construed to

apply only to prize lists that constitute commercial

speech. That is, the act should be read to apply only to

prize lists that serve to promote or advance a lottery

where the speaker either has a financial interest in the

lottery itself or has been paid directly to promote it.

When read in that manner, the prize list clause covers

a form of speech different than advertisements, but nev-

ertheless is still limited to what the Court has identified

as commercial speech.

1. The text of the statute is fully consistent with this

construction. To begin with, Section 1302 does not sup-

port the district court’s fear that the prize list clause

might apply to news stories or editorials about lotteries.

News reports and commentary are not mentioned among

the items to which the statute applies. Although such

speech could conceivably contain a list of the prizes won

in a lottery, Congress was concerned with a different type

of expression. Three examples of the types of promo-

tional materials distributed at the time the Anti-Lottery

Act of 1890 was adopted are reprinted in an appendix

to this brief. App., infra, 1la-l4a. Those examples are

significant for two reasons. First, they reveal that ad-

vertisements and prize lists were separately published

during that period.** Second, these examples suggest that

the reason Congress added a separate clause dealing with

prize lists was to ensure that the Act applied to circulars

and other promotional devices that would not neces-

sarily be considered advertisements, but would contain a

** Although the contemporaneous examples suggest that Congress

was primarily concerned with the publication of lists of prizes to

be awarded at future drawings of a lottery, the language of the

Statute is not so limited. Thus, we believe that the statute should

be read as prohibiting the use of the mails to distribute lists of

prizes previously awarded in a lottery as well as lists of future

prizes. Indeed, if the statute were limited to lists of future prizes,

it would be relatively easy to evade its terms by publishing lists of

past prizes and indicating that similar prizes would be awarded in

the future

list of what a bettor could win.*’ In sum, these promo-

tional materials demonstrate that the advertisement and

prize list clauses were designed to apply to what would

today be called commercial speech, not to news com-

mentary.

The fact that Section 1302 refers to lottery advertise-

ments and prize lists in tandem strongly indicates that

the two clauses should be read in a complementary fash-

ion. Third National Bank v. Impac Ltd., 432 U.S. 312,

322 (1977): Jarecki v. G.D. Searle & Co., °67 U.S. 303,

307 (1961': Virginia v. Tennessee, 148 U.S. 503, 519

(1893). That construction of the Act is also reason-

able. Lotteries, like the various other forms of gambling, ©

often use prize lists for the same purpose as advertise-

ments: to attract participants. By identifying prizes

that will be ‘or have been) awarded in a lottery, a prize

list promotes the future sales of lottery tickets. A prize

list can also serve as a device for notifying winners, a

function essential to the conduct of a lottery. The prize

list clause therefore should be read as applying to the

same type of conduct as the advertisement clause: to the

27 Some lottery sponsors may not have included a list of their

prizes in every circular. For example, the Postmaster General

reported that the National Lanking Company issued bonds on the

drawings of the Louisiana, Havana, and Kentucky lotteries and

that one of its circulars said: “Circulars containing list of securi-

ties dealt in, with full and explicit information, sent free.” Use of

the Mails for Lottery Purposes, H.R. Exec. Doc. 22, supra, at 9.

**“The maxim noscitur a sociis, that a word is known by the

company it keeps, while not an inescapable rule, is often wisely

applied where a word is capable of many meanings in order to avoid

the giving of unintended breadth to the Acts of Congress.” Jarecki

v. GD. Searle & Co., 467 U.S. at 307. That maxim stated a “famil-

iar” rule that was “applicable to all written instruments” in 1893.

Virginia Vv. Tennessee, 148 U.S. at 519. It is reasonable to assume

that Congress was aware of that rule when it enacted the Anti-

Lottery Act of 1890 and to interpret Section 12302 with that rule

in mind.

use of the mails to promote a lottery for profit by one

who has a direct financial interest in the lottery or its

promotion.

2. History also supports that conclusion. In constru-

ing a statute, “‘/c]ourts may with propriety recur to

the history of the times when it was passed; and this is

frequently necessary, in order to ascertain the reason

as well as the meaning of the particular provisions in

it.” Leo Sheep Co. v. United States, 440 U.S. 668, 669

(1979) ‘citation omitted). The background to the Anti-

Lottery Act of 1890 confirms that Congress did not adopt

the Act in order to deny newspapers the use of the mails

for publishing news stories or commentary about lot-

teries.

The target of the Anti-Lottervy Act of 1890 was the

Louisiana Lottery, not newspapers. The Act was adopted

in order to bring a halt to that lottery. a multi-million

dollar nationwide gambling enterprise that was the only

lottery still operating legally in 1890 and that received

more than 90% of its income from out-of-state bettors.

Newenapers were included among the types of publica-

tions covered by the Act for one simple reason: Thev

were a relatively inexpensive way to distribute lottery

advertisements, and the Attorney Geners! had concluded

that the 1876 Act did not cover newspapers that pub-

lished lottery advertisements. Congress found that the

only effective way to suppress the Louisiana Lotterv—

to “eut [it] down to a mere local gambling establish-

ment, answerable to the police powers of the local gov-

ernment” (21 Cong. Rec. 8717 (1890) (Rep. Hitt) )—

was to exclude from the mails newspapers and all other

publications that contained its advertisements and _ re-

lated promotional materials and thereby to deny the

Louisiana Lottery access to its primary source of in-

come. The references in Section 1302 to “any advertise-

ment of any lottery” and to “any list of the prizes drawn

or awarded by means of any such lottery” should be read

in light of that overriding purpose.”

3. Further support for that interpretation of the prize

list clause is found in this Court’s contemporaneous deci-

sion in Horner vy. United States, 147 U.S. 449 (1893).

Horner involved a prosecution under the Anti-Lottery

Act of 1890 for mailing a circular describing government

bonds whose redemption value hinged on the date that

the bonds were chosen for repayment. One of the ques-

tions was whether the circular “ ‘constitute/d] a list of

the drawings at any lottery or similar scheme’ ” for pur-

poses of the Act. 147 U.S. at 455 (quoting certified ques-

tion). The circular contained a list of the bonds and the

amount of money awarded. That list was not remotely

** As previously noted, Congress expressly considered the ques-

tion whether the prohibitions of the Anti-Lottery Act would in-

fringe on the First Amendment, and concluded that they would not.

As Representative Wilkinson explained (21 Cong. Rec. 8712

(1890)):

It is said also that this is a blow at the freedom of the press,

which, with freedom of speech, Congress is forbidden by the

first amendment to the Constitution to make any abridgement

of.

Sir, if this is a blow against the freedom of the press it is

such a blow as the State of New York has struck where lottery

advertisements are forbidden in the newspapers. It is such a

blow as other States in this Union have struck who have done

likewise, but I have never yet heard it has there been con-

sidered a blow at the freedom of the press. The freedom of

the press, as I understand it, consists in the right of the editor

of the newspapers to free'y express their views on public

questions without let or hinderance by those in authority. It

means to forbid that censorship of the press once so prevalent

in Europern countries and still common in those countries, but

this matter of advertisements seems to me to be a different

affair. I hold in my hand as good a paper, as well supplied

with news, as interesting a paper to read, perhaps, as any in

the United States, a paper which is published in a State where

lottery advertisements are forbidden and where no newspaper

dare to print one, and it seems to thrive and prosper and makes

no complaint that its rights have been interfered with. ~

similar to what would be called a “news story,” but was

virtually identical to the example of a contemporary

prize list reprinted in the appendix to this brief. Jd. at

451-453 n.1.° The Court found that the circular con-

tained a list of the prizes awarded by a lottery. Jd. at

467. Clearly, it was promotional material similar to that

described in Horner, not a news report about a lottery,

that Congress had in mind when it enacted the Anti-

Lottery Act of 1890. See also United States v. Politzer,

59 F. 273, 277 (N.D. Cal. 1893) (applying Horner to

a similar publication). See France v. United States, 164

U.S. 676 (1897), and Francis v. United States, 188

U.S. 375 (1903) (prosecutions under the Anti-Lottery

Act of 1890 for gambling activities that would today be

called “numbers” or “policy”.

That Section 1302 does not reach all types of informa-

tion about lotteries can also be seen when that law is

compared with the parallel statute regulating the broad-

casting of lottery-related information, 18 U.S.C. 1304,

which was enacted as part of the Communications Act

of 1934, 47 U.S.C. (& Supp. IIT) 151 et seg. Section

1304 prohibits broadcasting “any advertisement of or

information concerning any lottery * * * or any list of

the prizes drawn or awarded by means of any such lot-

* The circular was reprinted in a footnote in the Court’s opinion.

It contained a list of the bonds that had been chosen (147 U.S. at

451 n.1) and a list of money awarded (id. at 453 n.1):

On one bond 250,000 gulden

On one bond 25,000 gulden

On one bond 15,000 guiden

On one bond 10,000 gulden

On 2 bonds, each at 5000 guiden 10,000 gulden

On 3 bonds, each at 2000 gulden 6,000 guiden

On 6 bonds, each at 1000 gulden 6,000 gulden

On 15 bonds, each at 500 gulden 7,500 gulden

On 30 bonds, each at 400 guiden 12,000 gulden

Compare the promotional materials distributed by the Louisiana

Lottery. App., infra, 1la-12a.

tery * * * whether such list contains any part or all of

such prizes” (emphasis added). The term “any * * * in-

formation” clearly includes matters that are not covered

by the terms “advertisement” and “prize list” that also

appear in the Act.*' Section 1304 therefore shows that

Congress knows how to draft a statute containing a more

expansive ban on the distribution of lottery-related infor-

mation when it wishes to do so, and that Section 1302

does not cover every type of information about lotteries.

Finally, construing Section 1302 to reach only com-

mercial speech is not “plainly contrary to the intent of

Congress” | DeBartolo Corp. v. Florida Gulf Coast Build-

ing & Constr. Trades Council, No. 86-1461 (Apr. 20,

1988), slip op. 6!, and it avoids the constitutional issues

raised by the district court’s interpretation of the . Act.

Ibid.; NLRB y. Catholic Bishop, 440 U.S. 490, 499-501

(1979) ; United States v. 12 200-Ft. Reels of Super 83MM.

3! The legislative history of Section 1304 suggests that the term

“any * * * information” was intentionally added to broaden the

scope of that law. The House used the phrase “any information,”

not “advertisement,” in its version of a bill that was designed to

modify the Radio Act of 1927, ch. 169, 44 Stat. 1162. H.R. Rep.

221, 72d Cong., Ist Sess. 7, 8 (1932). The Senate, however, sub-

stituted the term “advertisement” for “information” in order to

“more nearly place[ } radio stations on the same basis as newspapers

in connection with broadcasting information as to lotteries.” S.

Rep. 564, 72d Cong., Ist Sess. 10 (1932); S. Rep. 1004, 72d Cong.,

2d Sess. 12 (1932); S. Rep. 1045, 72d Cong., 2d Sess. 11 (1933).

The Conference Committee resolved the dispute by using both terms

in the Act. H.R. Conf. Rep. 2106, 72d Cong., 2d Sess. 3, 6 (1933);

76 Cong. Rec. 5204 (1933) (Sen. Dill). That bill was pocket vetoed

by President Hoover, but the identical provision became law the

following year in the Communications Act of 1934 (see S. Rep.

781, 73d Cong. 2d Sess. 8 (1934); H.R. Conf. Rep. 1918, 73d Cong..,

2d Sess. 26, 49 (1934)), and is now codified at 18 U.S.C. 1304.

Of course, the fact that Section 1304 includes more types of com-

mercial speech than Section 1302 does not mean that Section 1304

should be read to apply to noncommercial speech, such as news

stories or editorials about lotteries. Just as Section 1302 should be

read in a manner consistent with the First Amendment, so too

Section 1304 should be read in that manner.

Film, 413 U.S. 123, 130 n.7 (1973). For example, in the

12 200-Ft. Reels of Film case the Court said (413 U.S.

at 130 n.7) that it would interpret the term “obscene”

in a federal statute prohibiting the importation of ob-

scene material in a manner consistent with the definition

of obscenity adopted in Miller v. California, 413 U.S. 15,

25 (1973). A similar analysis is appropriate in this

case.

4. In sum, the district court erred in concluding that

commercial speech and advertising are coterminous and

that a law regulating somethine other than advertising

cannot be regarded as a regulation of commercial speech.

The prize list clause of Section 1302 can and should be

read to apply only to a form of commercial speech, i.¢.,

the publication of a list of prizes awarded by a lottery

when the list is published by a party who has a direct

financial interest in the lottery or its promotion.** Thus,

if a newspaper published a list of lottery prizes be-

cause it expected to receive a share of the lottery’s

proceeds or because the newspaper sponsored the lottery

itself, such a list would be covered by Section 1302, be-

cause it would be speech related to a commercial transac-

tion in which the newspaper has a financial interest.

Similarly, if a newspaper were paid to publish a list of

lottery prizes, that list would be covered by the statute,

because it would be speech about a commercial transac-

tion that the newspaper had been paid to promote.

32 Indeed, a list of the prizes to be awarded at a future drawing

of a lottery may be regarded as an implicit proposal to engage in a

commercial transaction and therefore as falling within what this

Court has identified as “the core notion of commercial speech.”

Youngs Drug Products, 463 U.S. at 66. See Central Hudson, 447

U.S. at 580 (Stevens, J. concurring in the judgment) (“A sales-

man’s solicitation, a broker’s offer, and a manufacturer’s publica-

tion of a price list or the terms of his standard warranty would

unquestionably fit within this concept.”) (footnote omitted).

On the other hand, Section 1302 should not be read

to apply to other forms of commentary about lotteries,

such as editorials, news stories, or documentaries. If a

newspaper published a list of lottery prizes because it be.

lieved that the list was newsworthy or because it sought,

for altruistic reasons, to promote a lottery’s success, that

list would not amount to commercial speech. That would

follow even if the newspaper published the list because

the publisher hoped to increase its circulation and thereby

generate additional revenues. The profit motive of a

newspaper publisher does not itself render a newspaper’s

contents commercial speech (Pittsburgh Press, 413 U.S.

at 384-385; New York Times Co. v. Sullivan, 376 U.S. at

266) and therefore does not transform the publication

of information about a future lottery into a violation of

Section 1302. When the prize list clause in Section 1302

is construed in the foregoing manner, that clause is con-

stitutional for the same reasons given by the district

court for upholding the advertisement clause.

II. SECTION 1302 IS A REASONABLE REGULATION

OF COMMERCIAL SPEECH

This Court has held that commercial speech is en-

titled to a limited degree of First Amendment protec-

tion provided it concerns a lawful activity and is not mis-

leading or fraudulent. Nevertheless, the Court has made

clear that even commercial speech that truthfully pro-

motes a lawful activity may be regulated, both as to the

time, place, and manner of its dissemination and as to its

content, in ways and for reasons that cannot be applied

to other types of speech. The government may restrict

commercial speech if the government’s interests are sub-

stantial, if the restriction directly advances those as-

serted interests, and if the restriction is no more exten-

sive than necessary to serve those interests. Central

Hudson, 447 U.S. at 564. Under this standard, commer-

cial speech may in some cases be prohibited altogether—

not despite, but precisely because of, its content. Posa-

das de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328

(1986) (gambling advertising); Queensgate Investment

Co. v. Liquor Control Comm’n, 69 Ohio St. 2d 361, 433

N.E. 2d 138, appeal dismissed for want of a substantial

federal question, 459 U.S. 807 (1982) (alcohol advertis-

ing); Pittsburgh Press (advertising that includes gender

discrimination) ; Capital Broadcasting Co. v. Mitchell,

333 F. Supp. 582 (D.D.C. 1971), aff'd summarily sub

nom. Capital Broadcasting Co. v. Acting Attorney Gen-

eral, 405 U.S. 1000 (1972) (broadcast cigarette adver-

tising). Under those decisions, the prize list clause, like

the advertisement clause, is a valid regulation of com-

mercial speech.

A. Section 1302 Directly Promotes Several Legitimate

Governmental! Interests

The first step in the inquiry is whether the government

has a substantial interest in restricting the speech.

Posadas, 478 U.S. at 340-341; Central Hudson, 447 U.S.

at 566. Section 1302 easily passes that test, since it reg-

ulates expression promoting an activity that Congress

and the states may discourage or suppress due to its

potentially injurious effects.

1. Section 1302 may be applied to prohibit the use

of the mails to promote an illegal lottery

Section 1302, by its terms, applies to both legal and

illegal lotteries, as this Court recognized in Horner Vv.

United States, 147 U.S. at 456, 466. To the extent that

the Act applies to lotteries that are illegal under federal!

or state law, it is clearly valid, since the government may

regulate or ban entirely speech proposing an illegal trans-

action. E.g., Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 496 (1982); Central Hudson,

447 U.S. at 563-564; Pittsburgh Press, 413 US. at 388.

That alone is sufficient to uphold the advertisement and

prize list clauses against a facial challenge.*

2. Section 1302 may be applied to prohibit the use

of the mails to promote a lottery that is legal

under federal or state law

a. Aside from preventing the promotion of illegal

lotteries, Section 1302 furthers other legitimate govern-

mental interests, as the district court explained. J.S.

App. 8a-lla. First, it protects the policies of those states

that have forbidden private lotteries from operating

within their borders. Second, by restricting the growth

of private lotteries, it reduces the threat of organized

33 In this respect, the district court’s judgment holding invalid

the prize list clause in Section 1302 goes well beyond decisions of

the Second and Third Circuits concerning the constitutionality of

the related broadcasting provision, Section 1304. The Second Cir-

cuit in New York State Broadcasters Ass'n v. United States, 414

F.2d 990 (1969), cert. denied, 396 U.S. 1061 (1970), upheld the

constitutionality of Section 1304 as applied to information directly

promoting a state-conducted lottery. Although the Third Circuit

in New Jersey State Lottery Comm'n v. United States, 491 F.2d

219 (1974) (en banc), vacated and remanded, 420 U.S. 371 (1975),

held that Section 1304 would be unconstitutional if it were applied

to prohibit the broadcasting of a winning lottery number in a law-

ful, state-conducted lottery, the court held that the statute could

constitutionally be applied to compensated broadcasts, and possibly

to some uncompensated promotional advertisements beyond the

context of broadcast journalism. 491 F.2d at 222. This Court

granted certiorari to review the Third Circuit’s decision, but later

dismissed the case as moot after Congress enacted 18 U.S.C. 1307,

which exempts state-run lotteries from Section 1304. United States

v. New Jersey State Lottery Comm'n, 420 U.S. 371 (1975).

Under the district court’s judgment in this case, which invali-

dated the prize list clause in its entirety, J.S. App. 20a, the Post-

master could not apply the prize list clause to any type of publica-

tion, including circulars prepared and disseminated by the sponsors

of an illegal numbers racket. Both the Second and Third Circuits,

however, would uphold Section 1302 if it were applied in that -

manner.

criminal infiltration of gambling enterprises and makes

it easier for the states that permit lotteries to police

that activity. The statute therefore advances principles

of federalism by allowing those states that have deter-

mined that private lotteries are contrary to public policy

to implement that judgment.”

Those interests are “substantial” under Central Hud-

son. The states clearly may protect the welfare of their

citizens against the harms historically associated with

gambling. Opponents of gambling have long argued that

it contributes to corruption and the growth of organized

crime; that it underwrites bribery, narcotics trafficking,

and other crimes; that it imposes a regressive tax on the

poor, the persons who are least able to bear that burden;

and that it offers a false but sometimes irresistible hope

of financial advancement.* The states’ belief that gam-

bling can be harmful is therefore not irrational. In fact,

the Court expressly so held in Posadas. 478 U.S. at 341.

The states may also treat lotteries in the same manner

as any other form of gambling. At one time, this Court

expressed the view that lotteries are beset with “inherent

* Moreover. by exempting state-run lotteries from Section 1302,

Congress has also allowed the states to maintain what is in effect

a local monopoly over lawful lottery activity as a means of raising

state revenues.

% See, e.g., the Congressiona] Statement of Findings and Purpose

preceding the Organized Crime Control Act of 1970, Pub. L. No.

91-452, 84 Stat. 922-923, 18 U.S.C. 1961 note; S. Rep. 91-617, 91st

Cong., 1st Sess. 71 (1969) ; President Nixon’s Message on Organized

Crime, H.R. Doc. 91-105, 91st Cong., Ist Sess. 5-6 (1969); S. Rep.

1579, supra, at 1, 4; Brown v. Hotel & Restaurant Employees Local

54, 468 U.S. 491, 494-495 (1984); Phalen v. Virginia, 49 U.S. (8

How.) at 168; President’s Comm’n on Law Enforcement and Admin-

istration of Justice, Task Force Report: Organized Crime 2 (1967) ;

President's Commission on Organized Crime, Interim Report to the

President and the Attorney General—The Cash Connection: Or-

ganized Crime, Financial Institutions, and Money Laundering 51

(1984); Gambling 74-88, 680-734; G. Sullivan, supra, at 45-49,

120-128.

vices,” and that “it cannot admit of a doubt” that they

are “demoralizing in their effects, no matter how care-

fully regulated.” Stone v. Mississippi, 101 U.S. 814, 818

(1879). Indeed, during the last century, it was the

generally accepted wisdom that “the common forms of

gambling are comparatively innocuous when placed in

contrast with the widespread pestilence of lotteries. The

former are confined to a few persons and places, but the

latter infests the whole community; it enters every

dwelling; it reaches every class; it preys upon the hard

earnings of the poor; it plunders the ignorant and sim-

ple.” Phalen v. Virginia, 49 U.S. (8 How.) 163, 167-168

(1850). See Champion v. Ames (Lottery Case), 188 U.S.

321, 355 (1903). More recently, it has been noted that

“!pleriodically every form of commercial gambling has

been infected by corruption, attesting to the unique at-

traction between organized crime groups and gambling’s

financial promise. Horse racing, casino operations, pro-

fessional sports, state run lotteries—legal gambling of

all kinds has been infiltrated in some form, at some time

or other, by organized crime.” 7 President’s Comm’n

on Organized Crime, Hearing on Organized Crime and

Gambling vi (1985). See S. Rep. 100-446, 100th Cong.,

2d Sess. 25 (1988) (“bingo is certainly as much a target

for criminal infiltration as any other cash gaming

operation”).

This Court has held that Congress has the power under

the Postal Clause, Art. I, § 8, Cl. 7, to assist the states

by excluding from the mails “such printed matter or

merchandise as may seem objectionable to it upon the

ground of public policy.” Public Clearing House v. Coyne,

194 U.S. 497, 507 (1904). Moreover, because the states

lack the authority to regulate what is sent through the

mails,** Congress reasonably could have believed that

% JS. App. 12a; see United States Postal Service v. Council of

Greenburgh Civie Ass’ns, 453 U.S. 114, 133 (1981) (the efficient

operation of the postal system requires adoption of “regulations of

federal legislation was necessary in order to prevent one

state from foisting its preferences on the citizens of

another.

b. Those interests are the same ones that persuaded

this Court in Ex parte Jackson and In re Rapier to up-

hold the predecessors to Section 1302. This Court rea-

soned in those cases that Congress has the authority

under the Postal Clause to forbid the use of the mails to

promote lotteries because participating in a lottery is

not a fundamental right and because Congress had not

forbidden newspapers from distributing lottery-related

materials by means other than the mails. The Court

thus held that Congress could support the states’ effort

to safeguard the public against the harmful effects of

gambling by excluding lottery-related promotional ma-

terials from the mails. Jn re Rapier, 143 U.S. at 134-135;

Ex parte Jackson, 96 U.S. at 736-737.

That rationale is still valid. Participating in a lottery,

like any other form of gambling, is not a constitutionally

protected activity. The federal government and the states

may regulate gambling, or prohibit it altogether. Po-

sadas, 478 U.S. at 345.*7 Even today, most states still

a general character having uniform applicability” throughout the

country); Jn re Rapier, 143 U.S. at 134; Er parte Jackson, 96

U.S. at 732.

37 See also Lewis v. United States, 348 U.S. 419, 422-423 (1955),

overruled in part on other grounds, Marchetti v. United States, 390

U.S. 39 (1968) ; Champion Vv. Ames (Lottery Case), 188 U.S. at 356-

358; Ah Sin v. Wittman, 198 U.S. 500, 505-507 (1905). As Justice

Hoimes explained in Otis v. Parker, 187 U.S. 606, 609 (1903)

(citations omitted ) :

If the State thinks that an admitted evil cannot be prevented

except by prohibiting a calling or transaction not in itself

necessarily objectionable, the courts cannot interfere, unless,

in looking at the substance of the matter, they can see that

it “is a clear, unmistakeable infringement of rights secured by

the fundamental law.” * * * {W]lagers may be declared illegal

without the aid of statute, or lotteries forbidden by express

enactment, although at an earlier day they were thought

prohibit most forms of privately run organized gambling,

such as gambling casinos, and regulate other forms of

gambling, such as lotteries. Although Congress has nar-

rowed the Act by creating an exception for state-run

lotteries, 18 U.S.C. 1307, that exception is not incon-

sistent with the overall regulatory scheme, as the dis-

trict court found. J.S. App. 9a-l0a. Congress could

rationally believe that state-run lotteries are less likely

to become large-scale gambling syndicates—latter-day

versions of the Louisiana Lottery—because of state over-

sight and control. See G. Sullivan, supra, at 122-123. At

the same time, the exception accommodates the interests

of the states that operate lotteries themselves. That exer-

cise in lateral federalism is a legitimate undertaking for

Congress. See South Carolina v. Baker, No. 94, Orig.

(Apr. 20, 1988), slip op. 5-7; Garcia v. San Antonio Met-

ropolitan Transit Authority, 469 U.S. 528, 550-554

(1985) .*

It is doubtless true that lotteries are no longer held in

the same disrepute they enjoyed when this Court decided

pardonable at least. The case would not be decided differently

if lotteries had been lawful when the Fourteenth Amendment

became law, as indeed they were in some civilized States.

38 Indeed, as previously noted, Congress has recently narrowed

the scope of Section 1302 even further by adopting additional ex-

ceptions for legal lotteries operated by charitable organizations or

by commercial businesses in certain situations, the Charity Games

Advertising Clarification Act of 1988, and for lotteries operated by

Indian tribes, the Indian Gaming Regulatory Act.

39 See S. Rep. 93-1404, 93d Cong., 2d Sess. 2 (1974) (“The pur-

pose of * * * [Section 1307 is] to accommodate the operation of

legally authorized State-run lotteries consistent with continued

Federal protection to the policies of non-lottery States.”) ; H.R. Rep.

93-1517, 983d Cong., 2d Sess. 5 (1974) (“in considering this legisla-

tion [i.e., Section 1307] the committee was faced with the task of

making a reasonable balance between Federal and State interests

in this area. Of course, this balance includes the consideration and

protection of the policies and interests of the States which do not

provide for such lotteries.” ).

Ex parte Jackson and In re Rapier. Attitudes change

over time, sometimes cyclicly, as new demons replace

old ones. Indeed, with respect to lotteries, our attitudes

may have returned to the same phase of the cycle that

existed in the colonial period, when lotteries were con-

sidered an acceptable activity, or “were thought pardon- .

able at least.” Otis v. Parker, 187 U.S. 606, 609 (1903).

Forty-five states now permit some form of gaming, such

as bingo.*® Many run state lotteries, or permit private

ones to operate. The states have adopted state-run lot-

teries as an alternative to raising taxes and see them as

a means of tapping into money that otherwise might be

taken in by organized crime; private enterprises use

lotteries as a means of attracting customers; and chari-

table organizations use lotteries as fundraising devices.*'

But the debate on the wisdom or morality of lotteries

has always been undertaken in the legislatures, not the

courts. It would be a mistake to conclude that today’s

views towards lotteries should serve as the basis for

judging the constitutionality of their regulation, for to-

day’s attitudes may once again come to be seen to be as

mistaken as the ones they replaced.

ce. Nor is it true, as the district court suggested (J.S.

App. 15a), that Jackson and Rapier have been surpassed

by developments in First Amendment law. Two develop-

ments are potentially relevant here. First, the Court has

made clear that, even though Congress need not operate

a post office at all, the First Amendment limits Congress’s

power to exclude material from the mails due to its con-

tent. Youngs Drug Products, 463 U.S. at 69-70 n.18;

Blount v. Rizzi, 400 U.S. 410 (1971); Lamont v. Post-

4° S. Rep. 100-446, supra, at 11-12.

*1 See H.R. Rep. 100-557, 100th Cong., 2d Sess. Pt. 1, at 4 (1988);

134 Cong. Rec. S16319 (daily ed. Oct. 14, 1988); id. at H10445

(statement of Rep. Frank); S. Rep. 100-446, supra, at 2; id. at 33

(Additional Views of Sen. McCain); id. at 36 (Additional Views of

Sen. Evans).

master General, 381 U.S. 301 (1965). Second, commer-

cial speech, which formerly was thought not to implicate

the First Amendment at all, Valentine v. Chrestensen,

316 U.S. 52 (1942), has since 1976 been entitled to some

constitutional protection. Virginia Pharmacy Bd., supra.

Neither development, however, has undercut Jackson and

Rapier.

It is now settled law, as Justice Holmes once remarked

in dissent, that “|t]he United States may give up the

Post Office when it sees fit, but while it carries it on

the use of the mails is almost as much a part of free

speech as the right to use our tongues.” United States

ex rel. Milwaukee Social Democratic Publishing Co. V.

Burleson, 255 U.S. 407, 437 (1921). But it is equally

well settled that Congress may exclude from the mails

certain types of expression associated with injurious

activities. For example, on several occasions the Court

has sustained over First Amendment challenges the con-

stitutionality of 39 U.S.C. (& Supp. IV) 3005 and 3007,

which empower the Postmaster General to initiate ad-

ministrative and judicial proceedings in order to inter-

cept mailings designed to promote fraudulent schemes.

Public Clearing House v. Coyne, supra; Donaldson v.

Read Magazine, Inc., 333 U.S. 178 (1948); Lynch v.

Blount, 505 U.S. 1007 (1972), aff’g 330 F. Supp. 689

(S.D.N.Y. 1971) (three-judge court) (§ 3005); Oxtpost

Development Corp. v. United States, 414 U.S. 1105, aff’g

369 F. Supp. 399 (C.D. Cal. 1973) (three-judge court)

(both sections). Thus, although some of the language in

Ex parte Jackson and In re Rapier about the scope of the

postal power would have to be qualified today, the hold-

ings of those cases—that Congress may use its postal

power to assist the states in the regulation of lotteries

and other injurious schemes—remain fully valid.”

42 In fact, the Court relied on Jn re Rapier in upholding those

laws. Public Clearing House v. Coyne, 194 U.S. at 508 (relying on

Rapier); Donaldson v. Read Magazine, Inc., 333 U.S. at 190-191

Similarly, although the Court has in recent years ex-

tended a measure of First Amendment protection to com-

mercial speech, the Court’s decisions also demonstrate

that Congress still has the power to regulate commer-

cial speech used in the promotion of gambling activities.

In particular, this Court’s 1986 decision in Posadas up-

held regulations prohibiting the commercial advertising of

casino gambling to the residents of Puerto Rico, even

though casino gambling and other gambling activities

were legal in that jurisdiction. The Court held that

Puerto Rico has a legitimate interest in restricting the

commercial advertising of casino gambling in order to

safeguard the moral well-being of its citizens, and to

prevent the corruption and infiltration of organized crime

that, unfortunately, often shadows organized gambling.

478 U.S. at 341. In addition, the Court ruled that re-

stricting commercial advertising is a rational way to

advance those interests, because the government could

reasonably believe that the commercial advertising of

casino gambling would enhance the demand for that

activity. Jd. at 341-342. The restriction was also rea-

sonably tailored to Puerto Rico’s iaterest in safeguarding

the welfare of its citizens, because it was focused on

residents. Id. at 343-344. Finally, the Court held that,

since Puerto Rico could ban gambling altogether, it could

take the less restrictive step of prohibiting the commer-

cial advertising of that activity. Jd. at 345-347. As the

(relying on Coyne). That principle has also been endorsed in sub-

sequent decisions. E.g., Friedman v. Rogers, 440 U.S. 1 (1979).

See also United States Postal Service vy. Athena Products, . td., 654

F.2d 362, 366-368 (5th Cir. 1981), cert. denied, 456 U.S. 915

(1982) (upholding 39 U.S.C. (& Supp. IV) 3095 and 3007 over a

First Amendment challenge); Original Cosmetics Products, Inc. v.

Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978), aff'd mem., 608 F.2d

214 (2d Cir.) (Table), cert. denied, 444 U.S. 915 (1979) (§ 3005)

Hollywood House Int'l, Inc. v. Klassen, 508 F.2d 1276 (9th Cir.

1974) (§ 3005); United States Postal Service v. Beamish, 466 F.2d

804, 806-807 (3d Cir. 1972) (§ 3007).

Court summarized last Term, “|i!n Posadas the Court

concluded that ‘the greater power to completely ban

casino gambling necessarily includes the lesser power to

ban advertising of casino gambling.’”’ Meyer v. Grant,

slip op. 10 (quoting Posadas, 478 U.S. at 345-346).

The regulatory scheme at issue here parallels the one

upheld in Posadas. Congress has the power under the

Commerce Clause, Art. I, § 8, Cl. 3, to prohibit the dis-

tribution in interstate or foreign commerce of lottery

materials, such as tickets (Champion v. Ames (Lottery

Case), 188 U.S. at 356-358), or to regulate local forms

of gambling that affect interstate commerce. United

States v. Hawes, 529 F.2d 472, A77-478 (5th Cir. 1976)

(collecting eases!: United States v. Hunter, 478 F.2d

1019, 102i (7th Cir.) (Stevens, J.). cert. denied, 414

U.S. 857 (1973) (upholding over « Commerce Clause

challenge the constitutionality of 18 U.S.C. (& Supp. IV)

1955, which makes it a crime to conduct a gambling busi-

ness in violation of state law). See generally Perez Vv.

United States, 402 U.S. 146 (1971); Heart of Atlanta

Motel, Inc. Vv. United States, 379 U.S. 241 (1964); Kat-

zenbach Vv. McClung, 379 U.S. 294 (1964); Wickard v.

Filburn, 317 U.S. 111 (1942). Thus, Congress could

have altogether prohibited private lotteries that are in or

affect interstate commerce. Instead, Congress chose to

limit the range over which private lotteries can operate

by forbidding them from sending promotionai materials

through the mails. That judgment is lawful under

Posadas. Posadas therefore shows that the Court’s de-

cisions in Ex parte Jackson and In re Rapier have not

been eclipsed by the development of the commercia! speech

doctrine.

B. The Mailing Restrictions In Section 1302 Directly

Promote Congress’s Interests

The second step in the Central Hudson analysis is

whether the advertising and prize list clauses directly

advance the interests noted above. Posadas, 478 U.S. at

341; Central Hudson, 447 U.S. at 566. Section 1302 also

passes that hurdle.

Posadas held that a legislature may reasonably con-

clude that restricting the advertising of gambling will

reduce the consumer demand for that activity, and will

thereby further the government’s interest in protecting

the public against the harms associated with gambling.

478 U.S. at 341-342. That ruling is consis.ent with

other decisions by this Court and lower federal and state

courts holding that a legislature may reasonably beliéve

that a restriction on the advertising of alcoholic bev-

erages will reduce the consumer demand for that prod-

uct.** That conclusion also makes economic sense. Pro-

hibiting the advertising of a particular product makes it

more costly for consumers to learn about and purchase a

good (see Virginia Pharmacy Bd., 425 U.S. at 763-765;

#3 See Queensgate Investment Co. vy. Liquor Control Comm'n, 69

Ohio St. 2d 361, 433 N.E.2d 138, 142 (“The advertising of drink

prices and price advantages would encourage and stimulate exces-

sive consumption of alcoholic beverages; an advertising prohibition

aids the interest in preventing that consumption.”), appeal dis-

missed for want of a substantial federal question, 459 U.S. 807

(1982); Dunagin v. City of Oxford, 718 F.2d 738, 749-750 (5th

Cir. 1983) (en banc), cert. denied, 467 L.S. 1259 (1984) (“suffi-

cient reason exists to believe that [alecoho!] advertising and con-

sumption are linked to justify the [advertising] ban, whether or

not ‘concrete scientific evidence’ exists to that effect”); Oklahoma

Telecasters Ass'n V. Crisp, 699 F.2d 490, 501 (10th Cir. 1983)

(“prohibitions against the advertising of alcoholic beverages are

reasonably related to reducing the sale and consumption of those

beverages and their attendant problems”), rev’d on other grounds

sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984);

S&S Liquor Mart, Inc. vy. Pastore, 497 A.2d 729, 734-735 (R.I.

1985); RJ. Liquor Stores v. Evening Call Pub. Co., 497 A.2d 331,

335-337 (R.I. 1985). Cf. Republic Entertainment, Inc. v. Clark

County Liquor & Gaming Licensing Bd., 99 Nev. 811, 672 P.2d 634

(1983) (upholding local regulations prohibiting unlicensed escort

services from advertising); Princess Sea Indus., Inc. v. State, 97

Nev. 534, 635 P.2d 281 (1981), cert. denied, 456 U.S. 926 (1982)

(upholding state statute prohibiting licensed brothels from adver-

tising).

Jackson & Jeffries, Commercial Speech: Economic Due

Process and the First Amendment, 65 Va. L. Rev. 1,

26-28 (1979)) and therefore complements a restriction

on its distribution. It was not irrational, therefore, for

Congress to conclude that barring lotteries from sending

promotional materials through the mails will limit par-

ticipation in lotteries, and that the advertising ard prize

list restrictions will complement the prohibitions in Sec-

tions 1301 and 1302 on the use of instrumentalities of

interstate and foreign commerce or the mails to distribute

lottery ticke+s. That reasonable belief, Posadas held, is

all the First Amendment demands. 478 U.S. at 342 (the

direct advancement step is met where the legislative

judgment is “a reasonable one”). See Metromedia, 453

U.S. at 508-509 (plurality opinion’ (“direct advance-

ment” step met where the legislative judgment “is not

manifestly unreasonable”; accepting “the accumulated,

common sense judgments of local lawmakers and of the

many reviewing courts that billboards are real and sub-

stantial hazards to traffic safety’); Central Hudson, 447

U.S. at 569 (“There is an immediate connection between

advertising and demand for {the product].’’).

C. The Mailing Restrictions In Section 1302 Are No

More Extensive Than Necessary

The last step in the Central Hudson analysis is

whether the restriction is no more extensive than neces-

sary to serve the government’s interest. Posadas, 478

U.S. at 343: Central Hudson, 447 U.S. at 566. Section

1302 also passes that test.

1. Section 1302 does not forbid publications, including

newspapers, from publishing news stories or commentary

about lotteries. In fact, it does not even prohibit publica-

tions from publishing lottery advertisements or lists of

prizes they award. It simply forbids them from using

the mails if they choose to promote lotteries. Thus, Sec-

tion 1302-ttes-rot-imterfere with a newspaper’s ability

to inform the public about newsworthy events, nor does

it intrude into the editorial process in any material way.

The act affects only a newspaper’s decision whether to

publish lottery advertisements and prize lists, and that

does not materially interfere with a newspaper’s editorial

judgment. See Pittsburgh Press, 413 U.S. at 387 (“this

kind of editorial judgment does not necessarily strip

commercial advertising of its commercial character’) ;

id. at 387 n.11 (citing New York State Broadcasters

Ass’n V. United States, 414 F.2d 990 (2d Cir. 1969),

cert. denied, 396 U.S. 1061 (1970), which upheld the

related broadcast advertising ban in 18 U.S.C. 1304).

Accordingly, Congress has gone no further than neces-

sary to accomplish its goals. See Posadas, 478 U.S. at

343-344; Metromedia, 453 U.S. at 508 (plurality opinion).

2. Appellee contends (87-1943 J.S. 13-15) that Sec-

tion 1302 is overbroad becaure it is not limited to large-

scale interstate gambling enterprises and applies to lot-

teries operated on a local basis and to newspapers with

only a minimal interstate circulation. Appellee, however,

has misinterpreted the last part of the Central Hudson

test. That element is designed to ensure that the regu-

lation of commercial speech does not also restrict other

expression, such as political speech, which is entitled to

greater immunity than commercial speech. See Posadas,

478 U.S. at 343-344. It does not demand that Congress

limit the restriction on commercial speech to only those

commercial transactions that pose the risks that Con-

gress fears. As a general rule, “when it is necessary in

order to prevent an evil to make the law embrace more

than the precise thing to be prevented |Congress| may

do so.” Westfall v. United States, 274 U.S. 256, 259

(1927). In any event, even if locally run lotteries do

not today pose the same risks as large-scale interstate

organized gambling, Congress may reasonably conclude

that reducing the commercial promotion of gambling by

all lotteries is « valuable way to prevent some of them

from growing into large-scale gambling enterprises.

3. Amicus Minnesota Civil Liberties Union argues that

there should be a special exception for newspapers from

Section 1302, since the Act, it claims, has a “dispro-

portionate and unfair impact” on newspapers. MCLU

Br. 18. In effect, amicus urges the Court to resurrect

under the First Amendment the same exception that

Congress eliminated from the law when it passed the

Anti-Lottery Act of 1890 and has refused to incorporate

into the act since then.**

This Court’s decisions do not require that result. Jn

re Rapier declined to create a special exemption for

newspapers, and Pittsburgh Press, the first of the modern

commercial speech cases, also refused to do so, ruling

instead that a newspaper can be prohibited from pub-

lishing commercial advertisements promoting an illegal

activity. 413 U.S. at 389. As the Court explained, “a

commercial advertisement remains commercial in the

hands of the media, at least undgy some circumstances,”

such as when a newspaper simply reprints an advertise-

ment prepared by its sponsor. Jd. at 387. Section 1302

imposes a similar restriction. The only difference between

the advertisement in Pittsburgh Press and the activity

that appellee’s members desire to be paid to promote is

that certain lotteries are not illegal in Minnesota. But

that distinction should be immaterial in light of Con-

gress’ interest in helping the states that prohibit lot-

teries, and given the fact that the act does not interfere

with the editorial process.

Creating an exception for newspapers also would un-

doubtedly encourage lottery sponsors to publish lottery

“newspapers” rather than “circulars” in order to shelter

their promotional efforts. There is even some evidence

that such a practice took place before newspapers were

44 The issue was brought to Congress’s attention as recently as

1974. See H.R. Rep. 93-1517, supra, at 24 (report accompanying a

bill proposing the exemption for state-run lotteries now found at

18 U.S.C. 1307) (Additional Views of Rep. Froehlich).

added to the law by the Anti-Lottery Act of 1890.° An

exception for newspapers would therefore swallow the

rule.**

To be sure, Section 1302 adds to a newspaper’s publi-

cation costs if it wishes to use the mails. A newspaper

must either run a separate edition without lottery ad-

vertising or prize lists in order to send its papers in

the mails, or it must print circulars that are inserted

into its street editions, or it must forgo the revenues

from lottery promotions. See G. Sullivan, supra, at 106-

107 (describing the practice of “replating” different edi-

tions in New York following the adoption of a state-run

lottery). But history shows that Section 1302 has not

driven newspapers out of business or cheapened the

public dialogue. Representative Wilkinson’s prediction

during the debate on the Anti-Lottery Act of 1890 (page

#5 A report from the Postmaster General to the Speaker of the

House of Representatives described two such “newspapers.” Use

of the Mails for Lottery Purposes, H.R. Exec. Doc. 22. supra, at 12.

#6 Of course, the courts could attempt to lizuit the exception to

“bona fide” newspapers. That suiutivu, nowever, poses significant

definitional problems. Unless any publication that remotely re-

sembles a newspaper could invoke the exception, the courts would

need to distinguish bona fide newspapers from ones that exist simply

to evade the law. Doing so would require the courts to pursue an

undirected line-drawing exercise, because neither the text nor pur-

poses of the First Amendment supply any assistance in making

that determination. See Regan v. Time, Inc., 468 U.S. 641, 683 n.22

(1984) (citation omitted) (“There is * * * much truth in the Dis-

trict Court’s observation that ‘[t]he definition of a journal, news-

paper or album is anyone’s game to play.’”’) (opinion of Brennan,

J.); First Nat'l Bank v. Bellotti, 435 U.S. 765, 801 (1978) (Burger,

C.J., concurring) ; Branzburg v. Hayes, 408 U.S. 665, 703-705 & n.40

(1972). It is also far from clear why the First Amendment should

encourage discrimination of this type, because “‘the traditional doc-

trine [is] that liberty of the press is the right of the lonely pam-

phleteer who uses carbon paper or a mimeograph just as much as

the large metropolitan publisher who uses the latest photocomposi-

tion methods.” Jd. at 704; Lovell v. City of Griffin, 303 U.S. 444,

450, 452 (1938).

26 note 29, supra) has proved correct: Limiting the abil-

ity of newspapers to carry commercial lottery advertise-

ments and prize lists has not become a vehicle for cen-

sorship of the press. To paraphrase the court’s aphorism

in Walz v. Tax Commission, 397 U.S. 664, 678 (1970),

if a restriction on the commercial promotion of lotteries

is the first step towards censorship of the press, the

second step has been long in coming.

CONCLUSION

In No. 87-1943, the judgment of the district court up-

holding the advertisement clause in 18 U.S.C. 1302

should be affirmed. In No. 87-1956, the judgment of the

district court invalidating the prize list clause in 18

U.S.C. 1302 should be reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

IRENE M. SOLET

Attorney

NOVEMBER 1988

APPENDIX A

Pee es a et

}

1. Article I, §8, Cl. 7 of the Constitution of the

United States provides in relevant part as follows:

The Congress shall have Power *-* * To establish

Post Offices and Post Roads.

2. The First Amendment to the Constitution of the

United States provides in relevant part as follows:

Congress shall make no law * * * abridging the

freedom of speech, or of the press * * *.

3. 18 U.S.C. 1301 provides as follows:

Whoever brings into the United States for the

purpose of disposing of the same, or knowingly de-

. posits with any express company or other common

carrier for carriage, or carries in interstate or for-

eign commerce any paper, certificate, or instrument

purporting to be or to represent a ticket, chance,

share, or interest in or dependent upon the event of

a lottery, gift enterprise, or similar scheme, offering

prizes dependent in whole or in part upon lot or

chance, or any advertisement of, or list of the prizes

drawn or awarded by means of, any such lottery,

gift[] enterprise, or similar scheme; or knowingly

takes or receives any such paper, certificate, instru-

ment, advertisement, or list so brought, deposited,

or transported, shall be fined not more than $1,000

or imprisoned not more than two years, or both.

4. 18 U.S.C. 1302 provides as follows:

Whoever knowingly deposits in the mail, or sends

. or delivers by mail:

Any letter, package, postal card, or circular con-

cerning any lottery, gift enterprise, or similar scheme

offering prizes dependent in whole or in part upon

lot or chance;

(la)

An lottery ticket or part thereof, or paper, cer-

tificate, or instrument purporting te be or to rep-

resent a ticket, chance, share, or interest in or de-

pendent upon the event of a lottery, gift enterprise,

or similar scheme offering prizes dependent in whole

or in part upon lot or chance;

Any check, dr: ft, bill, money, postal note, or money

order, for the purchase of any ticket or part thereof,

or of any share or chance in any such lottery, gift

enterprise, or scheme;

Any newspaper, circular, pamphlet, or publication

of any kind containing any advertisement of any

lottery, gift enterprise, or scheme of any kind offer-

ing prizes dependent in whole or in part upon lot

or chance, or containing any list of the prizes drawn

or awarded by means of any such lottery, gift enter-

prise, or scheme, whether said list contains any part

or all of such prizes;

Any article described in section 1953 of this title—

Shall be fined not more than $1,000 or imprisoned

not more than two years, or both; and for any sub-

sequent offense shall be imprisoned not more than

five years.

. 18 U.S.C. 1303 provides as follows:

Whoever, being an officer or employee of the Postal

Service, acts as agent for any lottery office, or under

color of purchase or otherwise, vends lottery tickets,

or knowingly sends by mail or delivers any letter,

package, postal card, circular, or pamphlet adver-

tising any lottery, gift enterprise, or similar scheme,

offering prizes dependent in whole or in part upon

lot or chance, or any ticket, certificate, or instru-

ment representing any chance, share, or interest in

or dependent upon the event of any lottery, gift en-

terprise, or similar scheme offering prizes dependent

in whole or in part upon lot or chance, or any list

of the prizes awarded by means of any such scheme,

shall be fined not more than $100 or imprisoned not

more than one year, or both.

6. 18 U.S.C. 1304 provides as follows:

Whoever broadcasts by means of any radio sta-

tion for which a license is required by any law of

the United States, or whoever, operating any such

station, knowingly permits the broadcasting of, any

advertisement of or information concerning any lot-

tery, gift enterprise, or similar scheme, offering

prizes dependent in whole or in part upon lot or

chance, or any list of the prizes drawn or awarded

by means of any such lottery, gift enterprise, or

scheme, whether said list contains any part or all

of such prizes, shall be fined not more than $1,000

or imprisoned not more than one year, or both.

Each day’s broadcasting shall constitute a sep-

arate offense.

7. 18 U.S.C. 1307 provides as follows:

(a) The provisions of sections 1301, 1302, 1303,

and 1304 shall not apply to an advertisement, list of

prizes, or information concerning a lottery conducted

by a State acting under the authority of State law—

(1) contained in a newspaper published in

that State or in an adjacent State which con-

ducts such a lottery, or

(2) broadeast by a radio or television station

licensed to a location in that State or an ad-

jacent State which conducts such a lottery.

(b) The provisions of sections 1301, 1302, and

1303 shall not apply to the transportation or mail-

ing—

(1) to addresses within a State of equipment,

tickets, or material concerning a lottery which

is conducted by that State acting under the

authority of State law; or

(2) to an addressee within a foreign country

of equipment, tickets, or material designed to

be used within that foreign country in a lottery

which is authorized by the law of that foreign

country.

(ec) For the purposes of this section (1) “State”

means a State of the United States, the District of

Columbia, the Commonwealth of Puerto Rico, or

any territory or possession of the United States;

and (2) “foreign country” means any empire, coun-

try, dominion, colony, or protectorate, or any sub-

division thereof (other than the United States, its

territories or possessions).

(d) For the purposes of this section “lottery”

means the pooling of proceeds derived from the sale

of tickets or chances and allotting those proceeds or

parts thereof by chance to one or more chance takers

or ticket purchasers. “Lottery” does not include the

placing or accepting of bets or wagers on sporting

events or contests.

8. 39 U.S.C. 3001 provides in relevant part as follows:

(a) Matter the deposit of which in the mails is

punishable under Section 1302 * * * of title 18 * * *

is nonmailable.

9. 39 U.S.C. (& Supp. IV) 3005 provides in relevant

part as follows:

(a) Upon evidence satisfactory to the Postal Serv-

ice that any person is engaged in conducting a

scheme or device for obtaining money or property

through the mail by means of false representations,

including the mailing of matter which is nonmail-

able under section 3001(d) of this title, or is en-

gaged in conducting a lottery, gift enterprise, or

scheme for the distribution of money or of real or

personal property, by lottery, chance, or drawing of

any kind, the Postal Service may issue an order

which—

(1) directs the postmaster of the post office at

which mail arrives, addressed to such a person

or to his representative, to return such mail to

the sender appropriately marked as in violation

of this section, if the person, or his representa-

tive, is first notified and given reasonable op-

portunity to be present at the receiving post

office to survey the mail before the postmaster

returns the mail to the sender;

(2) forbids the payment by a postmaster to

the person or his representative of any money

order or postal note drawn to the order of

either and provides for the return to the re-

mitter of the sum named in the money order or

postal note; and

(3) requires the person or his representative

to cease and desist from engaging in any such

scheme. device, lottery, or gift enterprise.

For purposes of the preceding sentence, the mailing

of matter which is nonmailable under section 3001 (d)

by any person shall constitute prima facie evidence

that such person is engaged in conducting a scheme

or device for obtaining money or property through

the mail by false representations.

(b) The public advertisement by a person engaged

in activities covered by subsection (a) of this sec-

tion, that remittances may be made by mail to a

person named in the advertisement, is prima facie

evidence that the latter is the agent or representa-

tive of the advertiser for the receipt of remittances

on behalf of the advertiser. The Postal Service may

ascertain the existence of the agency in any other

legal way satisfactory to it.

(ec) As used in this section and section 3006 of

this title, the term “representative” includes an agent

or representative acting as an individual or as a

firm, bank, corporation, or association of any kind.

(d) Nothing in this section shall prohibit the mail-

ing of (1) a newspaper of general circulation con-

taining advertisements, lists of prizes, or informa-

tion concerning a lottery conducted by a State acting

under authority of State law, published in that State,

or in an adjacent State which conducts such a lot-

tery, (2) tickets or other materials concerning such

a lottery within that State to addresses within that

State, or (3) an advertisement promoting the sale

of a book or other publication, or a solicitation to

purchase, or a purchase order for any such publica-

tion, if (A) such advertisement, solicitation, or pur-

chase order is not materially false or misleading in

its description of the publication; (B) such adver-

tisement, solicitation, or purchase order contains no

material misrepresentation of fact: * * * Paragraph

(3) shall not be applicable to any publication, ad-

vertisement, solicitation, or purchase order which is

used to sell some other product in which the pub-

lisher or author has a financial interest as part of a

commercial scheme. * * *

10. The Charity Games Advertising Clarification Act

of 1988, Pub. L. No. 100-625 (Nov. 7, 1988), provides

as follows:

SECTION 1. SHORT TITLE.

This Act may be cited as the “Charity Games Ad-

vertising Clarification Act of 1988”’.

SEC. 2. AMENDMENTS RELATING TO THE

MAILING AND BROADCAST OF AD-

VERTISEMENTS FOR LEGAL LOT-

TERIES AND SIMILAR ENTERPRISES.

(a) STATE-CONDUCTED LOTTERIES UNDER

TITLE 18.—-Subsection (a) of section 1807 of title

18, United States Code, is amended to read as

follows:

“(a) The provisions of sections 1301, 1302,

1303, and 1304 shall not apply to—

“(1) an advertisement, list of prizes, or other

information concerning a lottery conducted by

a State acting under the authority of State law

which is—

“(A) contained in a publication published in

that State or in a State which conducts such a

lottery ; or

“(B) broadeast by a radio or television station

licensed to a location in that State or a State

which conducts such a lottery; or

“(2) an advertisement, list of prizes, or other

information concerning a lottery, gift enter-

prise, or similar scheme, other than one described

in paragraph (1), that is authorized or not

otherwise prohibited by the State in which it is

conducted and which is—

“(A)conducted by a not-for-profit organization

or a governmental organization; or

“(B) conducted as a promotional activity by a

commercial organization and is clearly occa-

sional and ancillary to the primary business of

that organization.”

(b) DEFINITION OF NOT-FOR-PROFIT OR-

GANIZATION.—Subsection (d) of section 1307 of

title 18, United States Code, is amended by adding

at the end thereof “For purposes of this section,

the term a ‘not-for-profit organization’ means any

organization that would qualify as tax exempt under

section 501 of the Internal Revi nue Code of 1986.”.

(¢) POSTAL SERVICE REGULATION OF LOT-

TERIES.—-Paragraph (1) of section 3005(d) of

title 39, United States Code, is amended to read as

follows: “(1) publications containing advertise-

ments, lists of prizes, or information concerning a

lottery, which are exempt, pursuant to section 1307

of title 18 of the United States Code, from the pro-

visions of sections 1301, 1302, 1303, and 1304 of

title 18 of the United States Code,”.

SEC. 3. TECHNICAL AMENDMENTS.

(a) AMENDMENTS TO T'TLE 18, UNITED

STATES CODE.—Chapter 61 of title I8, United

States Code, is amended as follows:

(1) The section heading of section 1307 is

amended to read as follows:

“$1307. Exceptions relating to certain ad-

vertisements and other information and to State-

conducted lotteries”’.

(2) The item relating to section 1307 in the

table of sections at the beginning of chapter 61

is amended to read as follows:

“See. 1307. Exceptions relating to certain ad-

vertisements and other information and to State-

conducted lotteries.”’.

'3) Subsection (d) of section 1307 is amended

by inserting after “purposes of” the following:

“subsection (b: of”.

‘4: The first sentence of section 1304 is

amended by inserting after “radio” the follow-

ing: “or television.”

SEC. 4. SEVERABILITY.

If any provision of this Act cr the amendments

made by this Act, or the application of such pro-

vision to any person or circumstance, is held in-

valid, the remainder of this Act and the amendments

— |

made by this Act, and the application of such pro-

vision to other persons not similarly situated or

to other circumstances, shall not be affected by such

invalidation. :

SEC. 5. EFFECTIVE DATE.

The amendments made by this Act shall take

effect 18 months after the date of the enactment of

this Act.

11. Section 21 of the Indian Gaming Regulatory Act,

Pub. L. No. 100-497 (Oct. 17, 1988), provides as follows:

Consistent with the requirements of this Act,

sections 1301, 1302, 1303 and 1304 of title 18,

United States Code, shall not apply to any gaming

conducted by an Indian tribe pursuant to this Act.

12. Section 123.42 of the Domestic Mail Manual (1988)

provides as follows:

42 Lottery Matter (18 U.S.C. 1302)

421 Any scheme or promotion, whether or not

lawful under the laws of any state, which, upon

payment of consideration, offers a prize dependent

in whole or in part upon lot or chance, is a lottery.

422 The following matter is unlawful mail

matter:

a. Any letter, package, postal card, or cir-

cular which advertises, invites or otherwise per-

mits or facilitates participation in a lottery.

b. Any lottery ticket or part thereof or sub-

stitute.

ce. Any form of payment for a lottery ticket

or share.

d. Any newspaper, circular, pamphlet, or

publication of any kind containing any adver-

tising of a lottery or similar enterprise, or any

list of prizes awarded in such an enterprise.

10a

.423 This section does not apply to any fishing

contest not conducted for profit, wherein prizes are

awarded for the species, size, weight, or quality of

fish caught by contestants in any bona fide fishing or

recreational event (18 U.S.C. 1305).

424 This section does not apply to an adver-

tisement, list of prizes, or information concerning

a lottery conducted by a state acting under the

authority of its law contained in a newspaper pub-

lished in that state or in an adjacent state which

conducts such a lottery, or to the mailing to ad-

dresses within a state of tickets or other material

concerning a lottery conducted by that state under

the authority of its law (18 U.S.C. 1307).

lla

APPENDIX B

The following item is reproduced from Use of the Mails

for Lottery Purposes, H.R. Exec. Doc. 22, 46th Cong.,

2d Sess. 35-36 (1880):

LA. S.L.

UNPRECEDENTED ATTRACTION—OVER

HALF A MILLION DISTRIBUTED—LOUISIANA

STATE LOTTERY COMPANY.

This institution was regularly incorporated by the

legislature of the State for educational and chari-

table purposes in 1868, for the term of twenty-five

years, to which contract the inviolable fatth of the

State is pledged, with a capital of $1,000,000, to

which it has since added a reserve fund of $350,000.

Its grand single number drawings will take place

monthly. !t never scales or postpones. Look at the

following distribution:

GRAND PROMENADE CONCERT.

During which will take place the 115th grand

monthly and the extraordinary semi-annual drawing

at New Orleans, Tuesday, December 16, 1879, under

the personal supervision and management of Gen.

G. T. Beauregard, of Louisiana, and Gen. Jubal A.

Early, of Virginia. |[*|

Capital prize, $100,000.

NOTICE.—Tickets are ten dollars only; halves, $5;

fifths, $2; tenths, $1.

* Famous confederate generals Beauregard and Early were hired

by the Louisiana Lottery “[t|o inspire the public with confidence”

(H. Asbury, supra, at 86) and “to give the proceedings an air of

respectability and honesty.” G. Sullivan, supra, at 54.

12a

LIST OF PRIZES.

1 capital prize of $100,000 . _.. $100,000

1 grand prize of $50,000 50,000

1 grand prize of $20,000 . ae |

2 large prizes of $10,000 20,000

4 large prizes of $5,000 _ 20,000

I i on cinsessncinnsnnmumnnd 20,000

50 prizes of $500 | 25,000

100 prizes of $300 _. 30,000

200 prizes of $200 40,000

f § - sansa 60,000

10,000 prizes of $10 100,000

APPROXIMATION PRIZES.

100 approximation prizes of $200... — 20,000

100 approximation prizes of $100 _. 10,000

100 approximation prizes of $75 7,500

11.279 prizes, amounting to 522,500

Gen. G. T. Beauregard, of Louisiana, Gen. Jubal

A. Early, of Virginia, Commissioners.

Applications for rates to clubs should only be made

to the office of the company in New Orleans.

Write for circulars, or send orders to

M.A. DAUPHIN,

P.O. Box 692, New Orleans, La.

Or same person at No. 319 Broadway, New York

—— re i ee ee ee

13a

The following items are reproduced from G. Sullivan,

By Chance a Winner: The History of Lotteries 53, 55

(1972):

NEE GON SORE

v2 5 tp OY sar Pg en ae oa FREY a ;

4 ROYSEED,NO ‘ HARVEST." > t

Sant RPT SA Aw 4h oes wap Ge

. . df _ LS -

ry su ee ee

5 eeoretanep—'.S

‘a

GEN. 3. 1. BEAUREGARD, of Louisiana,

—— BAN La

GEN. JUBAL A. EARLY, of Virginia.

COT CTT TTT TTT TTT TT TT TTT T TIT TS SSIS ST ST SST TSS S SSS SS VOCOST TITS

+t hE PORVTAN TI ~~,

The Post-Otfice Departancut bus decided that the Mails of thir

Compauy cnanot be Interfered with.

> Saanee) auinelepaies

—

SS o-

‘t

We pryer nat alk Remittances ne witews American Eeoress Go « sloncy Orders. From

a om ro hy el, rerait New Yor® aavhange, Deaic ou New Udicans,

or Post iice Mooney Orier Sead Currency or Cuin only by Capress or Keyimterey

Letter, otherwire |¢ will not be safe. aoe ” :

tAdé, ess, M.-A.1DAUPHIN,. <2 * 5°

ie @ x. New Orleans, Louisiana,

@ * ,

l4a

~- - .- -—-r 1-4 aoe Oe ey Pre 8 ee wre er ee An rE Be ae idl

“HAVANA SCHEME.

Shelby College Lottery of the State of Kentucky.) ¢

=) ER =

=. CLASS 258 =

5 | To be drawn in Covington, Ky., on Wednesday, May Sist, 1865.| 5

?= SCHEME. PP

5 l Prise ci $40,060 09 cccencese cocnssental $40,000: a 5

ie . Prise <-- OS a 0.000 | <

Prise of ........ e ,

Ss : Prise of alll 10.050 BFC. cocccces seccce ...240.000 4

= Prise of ...... ss. Pj

va a Prise Of c.cces eceses 7375 ee pas ne -14750 =

2) : Prise of ...... sss0os 5 Seo) <

. ina. 5COD)™ -20.000 | -

4 B Prise of esses seve Cd 2

= 4, rite ol BDOD veo occ A ZODO | 5

: 13 xo... co... "22.0001 5

: ! BD Prices Of .ccese coves. L.OG®D we... 25.000 = :

“> Oo Prisee Of.....c005 cossevees 5CO on 25.000 =

® | 100 rim ot... 200... 29.000) >

= : _5. Oca Prisees of............ toe ses BD we. +0 on sneer he OO.CGO vA :

2 5.200 Prises...... seseeess emoantiog — ores sere svnceeses $3 3.750 =

oe AN OF TILE LO 0 BH 70s somins om | es, ermneatiog wih te santos |

we. emt Gnd fre eee Oe ee reed eee eT Lian 200 mami, se ae Se ee See

; | One re tee TR Soy Seat rs cam totes mae |

0 EE OS aes i i

” PACKAGES TEN DOLLARS.

_» ____ Prizes payable io fall witteont deductiou. J ie: =

) = “ naga “

O Remewncs & Hammett & Co ne md by we) enh pre hte | es J aay peowa om) 0s céddsene, eoauray, insy ene cand 0 dre inig

HAMMETT & .0.,, Dax 3100, P. 0. Mow York City.

W VU. S. GOVERNMENT PRINTING OFFice, 1968 241699 60760

nit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.