Amicus Curiae Brief — Greater New Orleans Broadcasting Assn., Inc. v. United States

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In THE

Supreme Court of the United States

OCTOBER TERM, 1998

GREATER NEW ORLEANS BROADCASTING

ASSOCIATION, INC., ef al.,

~ Petitioners,

UNITED STATES OF AMERICA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN ADVERTISING FEDERATION

IN SUPPORT OF PETITIONERS

Of Counsel RICHARD E. WILEY

WALLACE S. SNYDER Counsel of Record

President DANIEL E, Troy

JEFFREY L. PERLMAN BENJAMIN B. REED

WILEY, REIN & FIELDING

Senior Vice President

1776 K Street, N.W.

Government Affairs

AMERICAN ADVERTISING Washington, D.C. 20006

FEDERATION (202) 719-7000

1101 Vermont Avenue, N.W. Counsel for Amicus Curiae

Suite 500

Washington, D.C. 20005

February 25, 1999

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAB 0oo00...0....ccccccceececccoceee 1

tt FN ee Bt, TE Rian eae ne 2

PS __, RA NEA POTTS CSTE AAT Shae Ss A 3

I FULL PROTECTION OF COMMERCIAL

SPEECH UNDER THE FIRST AMENDMENT

IS CONSISTENT WITH THE ORIGINAL UN-

DERSTANDING OF THE-FIRST AMEND-

MENT AND THE PREVALENCE AND IM-

PORTANCE OF ADVERTISING AT THE

TIME OF THE FRAMING ................................. 5

A. Advertising Was An Integral Part of the

“Press” in Colonial America .............. 6

B. The Absence of Advertising Restrictions Is

Consistent With The Colonial Conception of

a “Free Press” That Included Advertising... 9

1. The challenges to early Stamp Acts evi-

dences the colonial conception of a “free

press” including advertising... 9

2. State trade regulations restricting only

unlawful products and services evidences

the colonial conception of a “free press”

including advertising ....................000000000..... 11

8. Common law exceptions to free commer-

cial speech involving false or misleading

speech evidences the colonial conception

of a “free press” including advertising... 15

4. Fully protecting advertising is consistent

with the Framers’ political philosophy,

which equated liberty and property.......... 16

TABLE OF CONTENTS—Continued

Il. THE PERVASIVENESS OF ADVERTISING

Il.

IV.

AND STATE LEGISLATIVE PRACTICE AT

THE TIME OF PASSAGE OF THE FOUR-

TEENTH AMENDMENT ARE CONSISTENT

WITH THE VIEW THAT COMMERCIAL

SPEECH IS ENTITLED TO FULL FIRST

AMENDMENT PROTECTION ....................---.+

A. Commercial Speech Was An Integral Part of

American Life During Reconstruction ..........

B. State Legislative Practice During Reconstru-

tion Is Consistent With Full First Amend-

ment Protections for Truthful Commercial

Speech Promoting Lawful Products and

i BE Le RE Rl kh i

LOWER PROTECTION FOR COMMERCIAL

SPEECH IS A TWENTIETH-CENTURY PHE-

NOMENON THAT HAS ITS ORIGINS IN A

DISENCHANTMENT WITH ECONOMIC

LIBERTIES AND CONFUSION WITH ECO-

NOMIC SUBSTANTIVE DUE PROCESS..........

A. The Pervasiveness of Advertising Grew in

the Early Twentieth Century .............0............

B. Disenchantment with Advertising Became

Apparent as a Result of Reform Movements

and the Great Depression ................................

C. The Incorrect Association of Advertising and

Economic Liberties Led to the Misguided

Distinction Between Commercial and Non-

commercial Speech ..

THIS PROPOSED INTERPRETATION OF

THE FIRST AMENDMENT IS NOT INCON-

SISTENT WITH THIS COURT'S PRIOR PRE-

CEDENT AND WILL NOT DRAMATICALLY

ALTER THE FACE OF FIRST AMENDMENT

IE ccaisthhachtinhtccitiienisnsaasnigs bbbincihoniwse

Page

CONCLUSION ................<-0-0-+0-

iii

TABLE OF CONTENTS—Continued

Vv. THE FEDERAL BAN ON BROADCAST AD-

VERTISING OF CASINO GAMBLING IS PRO-

HIBITED BY THE FIRST AMENDMENT........

Page

TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

(1996) ....... eel Aa NE AI, Jl Bia ee! SE: a

Board of Trustees v. Fox, 492 U. S. 469 (1989)

Borrekins v. Bevan, 3 Rawle 23 (Pa. 1831)

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980)

City of Cincinnati v. Discovery Network, 507 U.S.

SD athlete te bes

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

ES STAG TE! Seale Oe

Edenfield v. Fane, 507 U.S. 761 (1998)...

Glickman v. Vileman Bros. & Elliot, Inc., 521 U.S.

RRR Er et eT kel PE

Greater New Orleans Broadcasting Ass'n v.

United States, 149 F.3d 334 (5th Cir. 1998)

Grosjean v. American Press Co., 297 U.S. 233

| aa 0 OR ST CENA a een Be

Halter v. Nebraska, 205 U.S. 34 (1907) .

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

Needham v. Proffitt, 41 N.E. 606 (Ind.1942).._.

Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376 (19738)...

Posadas de Puerto Rico Associates v. Tourism Co.

of Puerto Rico, 478 U.S. 328 (1986) .... ated

Rex v. Higgins, 2 East 5, 102 Eng. Rep. 269 (K. B.

1801)... sepestncseinsiiiiiigitaaddciiani lieth Cia iia

Rubin v. Coore Brewing Co. 514 U.S. 476 (1995).

Seattle v. Proctor, 48 P.2d 238 (Wash. 1935)...

State ex rel. Booth v. Beck Jewelry Enterprises,

Ine., 41 N.E.2d 622 (Ind. 1942) wins a

Stromberg v. California, 288 U.S. 359 (1981). $

United States v. Carolene Products Co., 304 U.S.

ot ES ee

Valentine v. Chrestensen, 316 US. 52 (1942). i

Virginia State Board of Pharmacy v. Virginia Cit-

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

(1976)... i.

Ware v. Ammon, 278 sw. ‘593° (Ky. ct. “App.

A SS SE aera a ets” KN

Page

4, 5, 28

3, 27

TABLE OF AUTHORITIES—Continued

West Coast Hotel Co. v. Parrish, 300 U.S. 379

a re ae iheineiealiichiniion’

Statutes and Legislative Material

8 SE ee ee Cae

EEE a se ey eee

Act Against Horse Racing, 1820, A Digest of the

Acts of the General Assembly of Pennsylvania

a ee ee ee Se

Act Enabling the Town-Councils of Each Town In

This State to Grant Licenses, 1728, The Public

Laws of the State of Rhode-Island and Provi-

dence Plantations 391-94 (1798) 2...

Act for Punishing and Preventing Oppression,

1635 (amended 1730), The Public Statute Laws

of Connecticut 544 (1808) 2000

Act for Regulating Ordinaries, Houses of Enter-

tainment and Retailers of Spirituous Liquors,

1798, The Public Acts of the General Assembly,

of North Carolina 122-23 (1804) .. y

Act for Regulating the Exportation of Tobacco and

Butter, and the Weight of Onions in Bunches,

and the Size of Lime-Casks, 1785, The Laws of

the Commonwealth of Massachusetts 320-23

(1807) . =

Act for Suppressing ‘and Preventing of Private

Lotteries, 1762, The Public Law of the State of

South Carolina 256-67 (1790) . 7

Act for the Better Making and Measuring of Malt,

1700, The Laws of the Commonwealth of Mass-

ES ns ae

Act for the More Effectual Suppressing and Pre-

venting of Lotteries, 1762, A Digest of the Acts

of the General Assembiy of Pennsylvania 584-85

RES ES 2 ae ns Se Te ee

Act for the Prevention of Lotteries, 1792, The

Laws of Maryland 189-90 (1811)... ia

Act for the Suppressing of Lotteries, 1791, The

Laws of the State of New Hampshire 839

ERE RP A een So eee ee

Page

1,3

TABLE OF AUTHORITIES—Continued

Act for the Suppression of Lotteries, 1785, The

Laws of the Commonwealth of Massachusetts

SEE a a aN RDO a! en

Act of Feb. 13, 1797, The Laws of the State of New

Ee ID bnetitntetinncncbiccitincsinlchiciiliztes,

Act Regulating Licensed Houses, 1791, The Laws

of the State of New Hampshire 373-76 (1797)..

Act Regulating the Admission of Attornies, 1785,

The Laws of the Commonwealth of Massachu-

CET GD Wihtdctdiadititiatattidcnitite itis

Act to Lay A Duty on Strong Liquors, and For

Regulating Inns and Taverns, 1801, Laws of the

State of New York 439-43 (1802) 00

Act to Prevent Frauds and Deceits in Selling Rice,

Pitch, Tar, Rosin, Turpentine, Beef, Pork, Shin-

gles, Stoves and Fire-wood, and to Regulate the

Weighing of the Merchandise in this Province,

1746, The Public Law of the State of South

Cy Te I ace eccciberesctteesseices cetccens

Act to Prevent Horse Racing, 1803, The Public

Statute Laws of the State of Connecticut 381-82

RE A re aR 10 gl ty Be

Act to Prevent Private Lotteries, to remit certain

Penalties, and to Repeal the Acts therein Men-

tioned, 1783, Laws of the State of New York 35-

CD BD cectnteensteninctaemnictadiientieiite Medan ite, ETT

Act to Regulate Flax-Feed, Pot-ash and Pearl Ash

for Exportation, 1785, The Laws of the State

of New Hampshire 377-79 (1797) ......000000...

Act to Regulate the Exportation of Potash and

Pearl Ash, 1792, The Laws of Maryland 191-92

RS REE ee Br ela, Feet oben ee

Act to Regulate the Practice of Physic and Sur-

gery, 1783, Laws of the State of New Jersey 7-8

8 RS Ea a OG Te Ale A ele

Bill of Rights art. XXII (N.H. 1783) ........

Cal. Penal Code § 311(4) (1872) 0000

vii

TABLE OF AUTHORITIES—Continued

Page

Cal. Penal Code § 317 (1872) ..... <ichsnbadenideniieeaaitien 22

Cal. Penal Code § CEN ie RS LI 21

Collection of All Such Acts of the General Assem-

gg pe RENE ESS EN A 12

Compiled Laws of Kan., ch. 31, § 338 (1885) ........... 22

Compiled Laws of Kan., ch. 31, § 342 (1885) —.......... 21, 22

Compiled Laws of Nev. § 2498 (1873) —.................... 21

Compiled Laws of Terr. of Utah § 2002 (1876)... 21

Compiled Laws of Terr. of Utah, Penal Code, tit.

ee cuban 22

Conn. Gen. Stat., tit. 12, § 150 (1866) —.................. 21

Conn. Gen. Stat., tit. 12, ch. 2, § 25 (1866) —......... 22

Decl. of Rights para. XXIII (Del. 1776) .................... 12

Decl. of Rights para. XX XVIII (Md. 1776) .............. 12

Decl. of Rights para. XVI (Mass. 1780) ..................... 12

Decl. of Rights para. XV (N.C. 1776) ...............0..... 12

Decl. of Rights para. XII (Pa. 1776) ........................ 12

Decl. of Rights § 7 (S.C. 1778) ....-.......cccceccccceecceeeeeeee 12

Decl. of Rights ch. 1, art. XITI (Vt. 1777)... 12

Decl. of Rights para. XII (Va. 1776)... 12

Decl. of Rights § 1 (Va. 1776) ........---2.c.ccccccccceeeceeeee 17

Del. Rev. Stat., chap. 98, v. 12, § 6 (1874) 0.0... 21

Digest of Laws of Fla., ch. 59, § 10 (1881) ..000000. 22

Digest of Laws of Fla., ch. 80, § 4 (1881)... 21

Digest of the Acts of the General Assembly of

I, I ine aisishaiantbenndinitodin 12

ts CS le Be OU cetecccteccnmetseeeeeerecwaienne 12

SR EC SC 21

Ky. Rev. Stat., ch. 28, art. 21, § 4 (1860 & Supp.

RR EY Gt ae a A ee 21

Laws of Maryland (1811) ....................2.....cccee-ecee0e-e- 12

Laws of the State of New York (1802) ....... 00... 12

Laws of the State of Vermont (1797) ...........000000.. 12

Mass. Gen. Stat., ch. 165, § 19 (1860) 2.00. 22

Md. Code, art. 30, § 114 (1860) ................................ 21

4 ER 8 22

Me. Rev. Stat., tit. 11, ch. 128, § 18 (1884) —.00000.. 21

Miss. Rev. Code § 2605 (1871) .................cccccceccceceneee 21

viii

TABLE OF AUTHORITIES—Continued

N.J. Rev. Stat., Crimes § 44 (1874) ..........cc.ccccccccceeeeee

N.Y. Rev. Stat., ch. 20, tit. 8, § 58 (1875) 00000.

N.Y. Rev. Stat., pt. 4, ch. I, tit. 6, § 77 (1875) ..........

N.Y. Rev. Stat., pt. 4, ch. I, tit. 6, § 78 (1875) ..........

Ohio Rev. Stat., ch. 2732, § 1 (1860 & Supp.)........ on

Ore. Gen. Laws, Crim. Code, ch. 8, § 661 (1874)......

R.1. Gen. Stat., ch. 282, § 28 (1872) ...... tN

The Laws of the Commonwealth of Massachusetts

from November 28, 1780 to February 23, 1807

6 NA FAO te NEB TOE PL 28 sy AES RT

The Laws of the State of New Hampshire (1797)..

The Laws of the State of New Jersey (1800)...

The Public Acts of the General Assembly of North

I I ial i ae

The Public Law of the State of South Carolina

IED scnceritnatipedhhneciinbietinchcialia cn tatattl ttt ei clk Reta

The Public Laws of the State of Rhode-island and

Providence Plantations (1798)...

The Public Statute Laws of the State of Connecti-

ene TIRE a RN RRB A ct ee a mlb le

8 Me ed ki ERNE Sa CN ES

Vt. Gen. Stat., ch. 119, § 7 (1870)

Vt. Stat., tit. 34, ch. 119, § 7 (1870)

W. Va. Code, ch. 149, § 11 (1868)

Miscellaneous

Bruce Ackerman, Constitutional Politics /Constitu-

tional Law, 99 Yale L.J. 458 (1989)...

3 William Blackstone, Commentaries .

4 William Blackstone, Commentaries .........

David S. Bogen, The Origins of Freedom of Speech

and Press, 42 Md. L. Rev. 429 (1983)

D. Boorstin, The Americans: The Colonial Feperi-

ence (1968).................. 9 EE” FASO WARE A ge

S. Botein, “Printers and the American Revolu-

tion,” in The Press and the American Revolution

(B. Bailyn & J.B. Hench, eds., 1980) ..........

TABLE OF AUTHORITIES—Continued

6 The Complete Anti-Federalist (Herbert J. Stor-

Rs I lds ccedhinnehistbaldetbdinwesienttbtiiitibiannbes

Verner W. Crane, “Introduction” to Benjamin

Franklin's Letters to the Press, 1758-1775

(Verner W. Crane ed., 1950) .........................e000---

Clyde A. Duniway, The Development of Freedom

of Press in Massachusetts (1966) .........................

Edwin Emery & Michael Emery, The Press and

GE ET HE EI TICE

2 Writings of Benjamin Franklin (Albert Henry

PRUE TEED ‘sxtnshinencitertindimepnianstieentibbmanninabeense

George French, 20th Century Advertising (1926)..

G. Allen Foster, Advertising: Ancient Market

Pe GP ED CW TIIT 9 cacicceceneseetotesercccsarercosecnce

Walton H. Hamilton, The Ancient Maxim Caveat

Emptor, 40 Yale L. Rev. 1188 (1981) .............. ed

Richard Hofstadter, The Age of Reform (1955)....

Carol S. Humphrey, “That Bulwark of Our Liber-

ties’: Massachusetts Printers and the Issue of

a Free Press 1783-1788, 14 Journalism Hist. 34

6) RRC ER EN Sac dee ae CTS a

15 The Papers of Thomas Jefferson (J. Boyd ed.,

EE Te Es ener Ok Lee ae

Matthew Josephson, The Robber Barons (1984)...

Morton Keller, Affairs of State (1977) ....................

Objections by A Son of Liberty, New York J., Nov.

8, 1787 ...... Fi 2 ROE AREAL. SS Rs ee

Hurnard J. Kenner, The Fight for Truth in Adver-

bY NEE IE AN REE Fe

Doug A. Kmiec & John O. McGinnis, The Contract

Clause: A Return to the Original Understand-

ing, 14 Hastings L. Q. 525 (1987) ......................

A. Lee, The Daily Newspaper in America (1987)...

Letter XVI, Jan. 20, 1788, in An Additional Num-

ber of Letters from the Federal Farmer to the

Republican (1962) .............. hitelieiiialasesiniatadittinteceh tld Sithadiie

Leonard A. Levy, Emergence of a Free Press

Page

TABLE OF AUTHORITIES—Continued

Page

John Locke, The Second Treatise on Government

(Thomas P. Peardon ed., Bobbs-Merrill 1st ed.

ES RL Te Rae eaeS e = Be S. 9 AS rs O 17

James Madison, Property, The National Gazette,

NR ee eae 18

James Madison, 14 Papers of James Madison

(Robert A. Rutand & Thomas Mason eds.,

IT wochebincsaadh titi teehinsacheteliantangacetancinthedniate Sherbet 18

John O. McGinnis, The Once and Future Property-

Based Vision of the First Amendment, 68 U. Chi.

Hi tC a 16-17

Kent R. Middleton, “Commercial Speech in the

Eighteenth Century,” in Newsletters to News-

papers: Eighteenth-Century Journalism (Don-

onvan H. Bond & W. Reynolds McLeod eds.,

1977) ..... 6,8

James C. Mohr, Abortion in America (1978)........ 22

Frank Luther Mott, American Journalism—A His-

tory of Newspapers in the United States through

250 Years: 1690-1960 (3d ed. 1968)... 6, 8, 20

Eric Nessier, Charging for Free Speech: User

Fees and Insurance in the Marketplace of Ideas,

PS Gs, Eels Gee Ce ddan. Se. 11

Rudolph J.R. Peritz, Competition Policy in Amer-

gk, RI AE hls 26

Frank Presbrey, The History and Development of

SE UE cececnsvistnitesesehshirsemnmeeimcssnarasianes passim

Clinton Rossiter, Seedtime of the Republic (1953).. 17

Arthur Schlesinger, Sr., Prelude to Independence:

The Newspaper War on Britain 1764-1776

ES ar cee Se ETT Se ee a 10

Jeffrey A. Smith, Printers and Press Freedom:

The Ideology of Early American Journalism

>. ERE Mee SL Pe 7,17, 19

Joseph Story, Equity Jurisprudence (1836) ........... 15

Isaiah Thomas, Essex, J., Apr. 19, 1786 2000000000000... 11

TABLE OF AUTHORITIES—Continued

Page

John Trenchard & Thomas Gordon, 1 Cato’s Let-

ters 110 (Ronald Harow ed., Liberty Classics

ed. 1995) (Essay No. 15, Of Freedom of Speech:

That the Same is Inseparable from Publick Lib-

eT RRR Oe ae ie Te 18

William F. Walsh, A History of Anglo-American

A a as SERA a Ol RET MN ene ee 25

James Playstead Wood, The Story of Advertising

a RO eI Seat NERD Eien RE Pe ar passim

Lawrence C. Wroth, The Colonial Printer (1938).. 7

David Yassky, Eras of the First Amendment, 91

Colum. L. Rev. 1699 (1991) ................................... 26, 27

BRIEF AMICUS CURIAE OF THE

AMERICAN ADVERTISING FEDERATION

IN SUPPORT OF PETITIONERS

This brief is respectfully submitted pursuant to Rule 37

urging that the Court reverse the decision below of the

United States Court of Appeals for the Fifth Circuit on

the grounds that the federal ban on broadcasting of casino

gambling, codified at 18 U.S.C. § 1304, violates the Peti-

tioners’ rights under the First Amendment to the Constitu-

tion of the United States.*

INTEREST OF AMICUS CURIAE

The amicus herein represents thousands of advertising

agencies, advertisers, and others who participate in the ad-

vertising industry, as well as individuals interested in pre-

serving freedom of speech. It is from this broad-based,

national perspective that the amicus presents its views to

the Court. The amicus is the American Advertising Fed-

eration (“AAF”), a national trade association that traces

its origins to 1903 and represents virtually all elements of

the advertising industry. Among AAF’s members are com-

panies that produce and advertise consumer products, ad-

vertising agencies, magazine and newspaper publishers,

radio and television broadcasters, outdoor advertising or-

ganizations, and other media. AAF members also include

twenty-one national trade associations; more than 200

local professional advertising associations with 52,000

members; and more than 200 college chapters, with more

than 6,000 student members. AAF members use virtually

all forms of media to advertise and communicate with con-

sumers throughout the United States. The amicus respect-

fully submits this brief to vindicate the principle that com-

1 Counsel for both Petitioner and Respondents have consented

to the participation of the amicus in this case, as evidenced in let-

ters filed with the Court pursuant to Supreme Court Rule 37. No

party wrote or financially contributed to the preparation of this

brief.

mercial speech should be entitled to the same constitutional

protection as non-commercial speech.

SUMMARY OF ARGUMENT

The text and history of the First Amendment, as well

as the “long accepted practices of the American people,”

support the view that truthful commercial messages about

lawful products and services should be accorded the same

constitutional protection as is non-commercial speech. The

text, of course, does not distinguish between commercial

and non-commercial aspects of the press. The lack of a

distinction for constitutional purposes is confirmed by the

practice of state legislatures at the time the Bill of Rights

was ratified. Although states regulated trade, the only

restrictions on advertising concerned the promotion of un-

lawful activities, such as lotteries or horse-racing. This

absence of state regulation is consistent with the colonial

conception of a “free press,” which included advertising,

and with the Framer’s political philosophy, which equated

liberty and property. Full protection of commercial speech

is also consistent with the history of the First Amendment,

which was adopted in part to bar stamp acts that imposed

taxes directly on advertising.

Advertising grew essentially unchecked and unregulated

throughout the nineteenth century. While the number of

states and statutes increased, advertising continued to be

barred only where it was used to publicize unlawful prod-

ucts, services, or activities. In addition, towards the end

of the century, some restrictions began to be adopted lim-

iting false and misleading advertising. This Court's treat-

ment of truthful advertising during and immediately after

Reconstruction was indistinguishable from the treatment

accorded other forms of speech.

The Progressive Era witnessed both an increase in the

power of advertising and attempts to limit it. But even

these attempts overwhelmingly focused on ensuring that

advertising was truthful and not misleading. During this

rae eee

time, courts analyzed contraints on commercial speech

under the rubric of substantive due process. This confu-

sion of categories caused the Supreme Court in Valentine

v. Chrestensen, 316 U.S. 52 (1942), to erroneously treat

restrictions on advertising as solely economic regulations

subject only to rational basis scrutiny.

That error, which is in part perpetuated by this Court's

continued distinction between commercial and non-com-

mercial speech, conflicts with the “long accepted practices

of the American people.” Those practices—particularly

state legislative practice at the times the First and Four-

teenth Amendments were ratified by the states—support

the contention that truthful, commercial messages about

lawful products and services are entitled to full First

Amendment protection. Under that standard, the federal

ban on broadcast advertising of casino gambling is plainly

unconstitutional.

ARGUMENT

At issue in this case is the federal proscription of broad-

cast advertising of “any advertisement or information

concerning any lottery, gift, enterprise, or similar statute

offering prizes depending in whole or in part upon lot

or chance.” 18 U.S.C. § 1304. The government argues

that this regulation is constitutional because “the statute

is not impermissibly restrictive.” Respondents’ Brief in

Opposition to Petition for Writ of Certiorari, at 19. This

argument stems from the perception that commercial

speech occupies some “subordinate position in the scale

of First Amendment values.” Board of Trustees v. Fox,

492 U.S. 469, 477 (1989).2 The amicus demonstrates

herein that, throughout most of this nation’s history, the

American people made no distinction between commercial

and non-commercial speech.

2 This “subordinate position” is exemplified by this Court’s deci-

sion in Central Hudson Gas & Electric Corp. v. Public Service Com-

mission, 447 U.S. 557 (1980).

This amicus has previously addressed the central impor-

tance of advertising to the historical development of the

American press and to the concept of the freedom of speech

and of the press. See, e.g., Brief of Amici Curiae Ameri-

can Advertising Federation, et al., Glickman v. Wileman

Bros. & Elliot, Inc., 521 U.S. 457 (1997); Brief of Amici

Curiae American Advertising Federation, et al., 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

In 44 Liquormart, the Court acknowledged the importance

of thai historical context in unanimously striking down a

state prohibition on advertising of liquor prices. The

plurality opinion specifically referred to the historical

materials discussed in our amicus brief, noting that:

Advertising has been a part of our culture throughout

our history. Even in colonial days, the public relied

on “commercial speech” for vital information about

the market. ... Indeed, commercial messages played

such a central role in public life prior to the Found-

ing that Benjamin Franklin authored his early defense

of a free press in support of his decision to print, of

all things, an advertisement for voyages to Barbados.

Id. at 1504 (Stevens, Kennedy, Souter & Ginsberg, J.J.)

(citations omitted). Justice Thomas, relying in part on

the historical analysis submitted by this amicus rejected

the notion that there was any “philosophical or historical

basis for asserting that ‘commercial’ speech is of ‘lower

value’ than ‘noncommercial’ speech.” Jd. at 1518

(Thomas, J., concurring in part and concurring in the

judgment) (citing Brief of Amici, American Advertising

Federation, et al.).

Justice Scalia, concurring in the judgment, noted his

“discomfort with the Central Hudson test,” as well as his

“aversion towards paternalistic governmental policies that

prevent men and women from hearing facts that might

not be good for them.” Jd. at 1515 (Scalia, J., concurring

in the judgment). Justice Scalia found the historical mate-

rial submitted by AAF, ef al., “consistent with First

Ameridment protection for commercial speech, but cer-

eee

tainly not dispositive.” Jd. He stated that “the long

accepted practices of the American people” were there-

fore central to interpreting the First Amendment, includ-

ing (1) state legislative practices at the time the First

Amendment was adopted; (2) state legislative practices

at the time of adoption of the Fourteenth Amendment;

and (3) “any national consensus that had formed regard-

ing state regulation of advertising after the Fourteenth

Amendment, and before this Court's entry into the field.”

Id.

In this brief, amicus curiae reviews the relevant history

in effort to address these issues. The amicus respectfully

submits that the state legislative history and practice, like

the available evidence surrounding the understanding of

the generation of the Framers, supports the proposition

that, until relatively recently, the American people did not

recognize a distinction in the protections afforded “com-

mercial” and “non-commercial” speech, other than the ad-

vertising of illegal activities and the protections afforded

against fraudulent or misleading claims.

I. FULL PROTECTION OF COMMERCIAL SPEECH

UNDER THE FIRST AMENDMENT IS CONSIST-

ENT WITH THE ORIGINAL UNDERSTANDING

OF THE FIRST AMENDMENT AND THE PRE-

VALENCE AND IMPORTANCE OF ADVERTISING

AT THE TIME OF THE FRAMING.

The development of a free press and of a commercial,

advertising-driven press were inextricably linked. Verner

W. Crane, “Introduction” to Benjamin Franklin's Letters

to the Press, 1758-1775, at xi, xvi (Verner W. Crane ed.,

1950) (“It was a commercial age, and [it] produced a

commercial press.”). As a result, the modern distinction

between “commercial” messages and other forms of speech

would not have occurred to colonial Americans.

A. Advertising Was An Integral Part of the “Press”

in Colonial America.

The interrelationship between editorial and advertising

content in the eighteenth century press illustrates the fal-

lacy of differentiating for constitutional purposes between

commercial and non-commercial speech. American news-

papers began to emerge only as colonial business and indus-

try began to grow. See Edwin Emery & Michael Emery,

The Press and America 19 (1978). As small industries

developed a need to inform the public of their wares,

printers began publishing newspapers to spread that in-

formation. As one commentator has observed, “[wlJell be-

fore 1800 most English and American newspapers were

not only supported by advertising but they were, even

primarily, vehicles for the dissemination of advertising.”

James Playstead Wood, The Story of Advertising 85

(1958). Advertising was both a major impetus and means

for establishing regularly published newspapers in colonia!

America.

The majority of the advertisements which appeared in

colonial newspapers would be considered “commercial

speech” today. “The colonial press regularly carried reput-

able medical advertisements, as well as those for books,

cloth, empty bottles, corks, and other useful goods and

services.” Kent R. Middleton, “Commercial Speech in the

Eighteenth Century,” in Newsletters to Newspapers: Eigh-

teenth-Century Journalism 277, 282 (Donovan H. Bond

& W. Reynolds McLeod eds., 1997). Without these ad-

vertisements, the colonial press so important to the Revolu-

tionary cause would almost certainly have been less vib-

rant, if it would have existed at all because, like today,

“[a]dvertising represented the chief profit margin in the

newspaper business.” Frank Luther Mott, American Jour-

nalism—-A History of Newspapers in the United States

through 250 Years: 1690-1960 56 (3d ed. 1963).

Among the soals of the first attempted colonial news-

paper was the promotion of “Businesses and Negotiations.”

Publick Occurrences, Both Foreign and Domestick, Sept.

25, 1690, at 1, quoted in Frank Presbrey, The History

and Development of Advertising 119 (1929). The ineu-

gural issue of the first successful American newspaper

contained the following solicitation:

This News-Letter is to be continued Weekly, and all

Persons who have Houses, Lands, Tenements, Farms,

Ships, Vessels, Goods, Wares or Merchandise, &c to

be Sold or Let; or Servants Run-Away, or Goods

Stole or Lost; may have the same inserted at a Rea-

sonable Rate.

Boston Newsletter, April 24, 1704, quoted in Wood,

supra, at 45. The next week’s issue of the Boston News-

letter contained paid entries that sought the return of two

lost anvils, offered a bounty for capturing a thief, and

listed a “very good Fulling Mill to be Let or Sold” in

Oyster Bay, New York. /d. at 45-46.

When the New-Hampshire Gazette was launched in

1756, its publisher said that the paper would

contain Extracts from the best Authors on Points of

the most useful Knowledge, moral, religious, or po-

litical Essays, and such other Speculations as may

have a Tendency to improve the Mind, afford any

Help to Trade, Manufactures, Husbandry, and other

useful Arts, and promote the public Welfare in any

Respect.

New Hampshire Gazette, October 7, 1756, quoted in Jef-

frey A. Smith, Printers and Press Freedom: The Ideology

of Early American Journalism 49 (1988). True to its

word, the Gazette, like the other newspapers of its day,

carried everything from price lists to political philosophy.

Lawrence C. Wroth, The Colonial Printer 234 (1938).

Often, more than half of the standard colonial newspaper

was taken up by advertising. In 1766, 70% of Hugh

Gaine’s New-York Mercury consisted of advertising. A.

Lee, The Daily Newspaper in America 32 (1937).

The first daily newspaper in the United States was es-

tablished in 1784 primarily as a medium for advertising.

When the Pennsylvania Packet and General Advertiser in-

itially appeared, ten of its sixteen columns were filled

with advertisements. Presbrey, supra, at 161. The name

of this paper (as well as that of New York’s first daily,

The New-York Daily Advertiser), reflected the common

understanding that commercial advertisements were as

much a part of the news of the day (and the purpose of

the press) as reports of government activity. The Boston,

New York, and Philadelphia newspapers, like most dailies

in these years, “used page one for advertising, sometimes

saving only one column of it for reading matter.” Mott,

supra, at 157.

Also, for much of the colonial era, newspapers did not

use layout techniques or differences in typeface to provide

a visual distinction between the two; they were regarded

as of equal interest to readers and treated the same. Mid-

dleton, supra, at 281. As one commentator observed:

Advertisements had as much interest as the news

columns perhaps greater interest, for they were more

intimately connected with the readers’ daily life than

were the foreign items that made up so large a part

of the news. Arrival of a new cargo of food or drink,

or tools, likely was what the man, home from a

reading at the coffee house or tavern, talked about

at his fireside rather than the reception of a new

envoy at some court in Europe.

Presbrey, supra, at 154.

Advertisements were also thought to have independent

value in educating and informing the reading public.

In the words of prominent printer-historian Isaiah Thomas,

editor of an ardently pro-Revolutionary newspaper

[A]dvertisements are well calculated to enlarge and

enlighten the public mind, and are worthy of being

enumerated among the many methods of awakening

and maintaining the popular attention, with which

more modern times, beyond all preceding example,

abound.

History of Printing in America with a Biography of Print-

ers, and an Account of Newspapers (1810), quoted in

D. Boorstin, The Americans: The Colonial Experience

328 (1958). As a source of information to the popula-

tion at large and income to colonial printers, advertising

was both influential and plentiful during the latter part

of the colonial era.

B. The Absence of Advertising Restrictions Is Con-

sistent With The Colonial Conception of a “Free

Press” That Included Advertising.

1. The challenges to early Stamp Acts evidences

the colonial conception of a “free press” includ-

ing advertising.

Given the prevalance of advertising in colonial Amer-

ica, it is not surprising that the very idea of a free press

evolved in close connection with the development of

advertising. Indeed, one of the major precipitating events

of the American Revolution involved a defense of adver-

tisements.

As this Court has recognized, one of the best-known

statements in defense of a free press—Franklin’s famous

Apology for Printers—was written in response to an at-

tack on an advertisement printed by Franklin.* Orig-

inally published in the June 10, 1731, edition of the

Pennsylvania Gazette, Franklin’s Apology contended that

“Printers are educated in the Belief that when Men differ

3An Apology for Printers (1731), reprinted in 2 Writings of

Benjamin Franklin 172 (Albert Henry Smith ed., 1907). In 1731,

Franklin printed a politically incorrect advertising notice that was

distributed as a standalone commercial handbill. The paper simply

proposed a commercial transaction by seeking additional freight

and passengers for a ship. At the bottom of the advertisement was

the note, “No Sea Hens nor Black Gowns will be admitted on any

Terms.” /d. at 176. This handbill outraged the local clergy (the

“Black Gowns”). In response to attacks on the advertisement,

Benjamin Franklin published his Apology which was at that time,

“(bly far the best known and most sustained colonial argument for

an impartial press.” S. Botein, “Printers and the American Revolu-

tion,” in The Press and the American Revolution 20 (B. Bailyn &

J.B. Hench eds., 1980).

in opinion, both Sides ought equally to have the Advan-

tage of being heard by the Publick.” An Apology for

Printers (1731), reprinted in 2 Writings of Benjamin

Franklin 174 (Albert Henry Smith ed., 1907). To Frank-

lin, even those “opinions” in advertisements should be

“heard by the Publick.” Thus, America’s first sustained

defense of a free press, and of the very notion of a “mar-

ketplace of ideas,” came in response to an attack on a

classic example of commercial speech.

In addition, the British Stamp Act of 1765 assessed a

tax on each printed copy of a newspaper and added a two

shilling tax for each advertisement therein. As one com-

mentator noted, “[B]y any standard [this amount] was

excessive, since the publisher himself received only from

3 to 5 {shillings} and rtill less for repeated insertions.”

Arthur Schlesinger, Sr., Prelude to Independence: The

Newspaper War on Britain 1764-1776 68 (1966). This

tax galvanized the colonial press against the British gov-

ernment:

Stamp duties also, imposed on every commercial in-

strument of writing-on literary productions, and, par-

ticularly, on newspapers, which of course, will be a

great discouragement to trade; an obstruction to use-

ful knowledge in arts, sciences, agriculture, and man-

ufactures,; and a prevention of political information

throughout the states.

Objections by A Son of Liberty, New York J., Nov. 8,

1787, reprinted in 6 The Complete Anti-Federalist 34, 36

(Herbert J. Storing ed., 1981). The opposition of news-

papers was based largely, if not primarily, on their con-

cern that it encroached on the freedom of expression.*

4In reacting to the Stamp Act, the Town of Worcester directed

its representatives in the Massachusetts Assembly to “take special

care of the LIBERTY OF THE PRESS.” Schlesinger, supra, at

70; see also Connecticut Gazette, quoted in id. (enjoining its read-

ers that “[t]he press is the test of truth, the bulwark of public

safety, the guardian of freedom, and the people ought not to

sacrifice it.”); New York Gazette or Weekly Post-Boy, Nov. 7,

1765, quoted in id. (flaunting its motto, “The United Voice of all

Thus, the repeal of the Stamp Act of 1765 one year after

it had been enacted “was a powerful victory for an inde-

pendent press and for advertising.” Presbrey, supra, at

151.

After the Revolution, and only five years after adopting

a state constitution explicitly guaranteeing freedom of the

press, Massachusetts enacted a similar stamp tax on news-

papers and newspaper advertisements. Eric Nessier,

Charging for Free Speech: User Fees and Insurance in

the Marketplace of Ideas, 74 Geo. L.J. 257, 264 (1985)

(citing Clyde A. Duniway, The Development of Freedom

of Press in Massachusetts 136 (1966)). These taxes were

widely denounced as, in printer Isaiah Thomas's words,

an “unconstitutional restraint on the Liberty of the Press.”

Isaiah Thomas, Essex J., Apr. 19, 1786, quoted in Carol

S. Humphrey, “That Bulwark of Our Liberties’: Massa-

chusetts Printers and the Issue of a Free Press 1783-1788,

14 Journalism Hist. 34, 37 (1987). Repeal of the adver-

tising tax in 1786 was also cited as a triumph for freedom

of the press. /d.; see also Grosjean v. American Press Co.,

297 U.S. 233, 248 (1936) (noting that “[t}he framers

were likewise familiar with the then recent Massachusetts

episode; and . . . that occurrence did much to bring about

the adoption of the [First Amendment]”).

2. State trade regulations restricting only unlaw-

ful products and services evidences the colonial

conception of a “free press” including advertis-

ing.

The practices of state legislatures around the time of

the First Amendment’s ratification provide further evidence

that the generation of the Framers did not distinguish

between the constitutional status of commercial and non-

commercial speech. Indeed, state statutes in effect at this

His Majesty's free and loyal subjects in America-LIBERTY, PROP-

ERTY, and no STAMPS.”).

5 All powers not delegated to Congress were reserved to the

people and the states, U.S. Const. amends. IX, X, and the First

Amendment explicitly limited Congress’s authority over speech and

time did not restrict truthful commercial messages about

lawful products or services.* Rather, consistent with the

constitutions of the ten states that explicitly protected the

freedom of the press,’ advertising was limited only when

used to promote products, services, or activities that were

themselves unlawful.

the press. As such, it is unlikely that the federal government was

granted greater power to restrict speech than existed in the states.

The fact that, as discussed below, state legislatures did not regulate

truthful advertising of lawful products and services suggests that

the federal government could not regulate such speech because

advertising was regarded as within “the freedom of speech and of

the press.”

6 This conclusion rests upon a review of the compilations of

ratification-era statutes for each state closest in date to 1791. The

Public Statute Laws of the State of Connecticut (1808); Laws of

Maryland (1811); The Laws of the Commonwealth of Massachu-

setts from November 28, 1780 to February 23, 1807 (1807); The

Laws of the State of New Hampshire (1797); The Laws of the

State of New Jersey (1800); Laws of the State of New York

(1802); The Public Acts of the General Assembly of North Caro-

lina (1804); Digest of the Acts of the General Assembly of

Pennsylvania (1841); The Public Laws of the State of Rhode-Island

and Providence Plantations (1798); The Public Law of the State

of South Carolina (1790); Laws of the State of Vermont (1797);

Collection of All Such Acts of the General Assembly of Virginia

(1803). All compilations are available at The Edward Bennett

Williams Law Library, Georgetown University Law Center. Con-

vemporaneous compilations for Delaware and Georgia were unavail-

able.

7 Decl. of Rights para. XXIII (Del. 1776); Ga. Const. of 1798

art. IV, §V; Decl. of Rights para. XXXVIII (Md. 1776): Decl.

of Rights para. XVI (Mass. 1780); Bill of Rights art. XXII (NT.

1783); Decl. of Rights para. XV (N.C. 1776); Decl. of Rights

para. XII (Pa. 1776); Decl. of Rights. §7 (S.C. 1778): Decl. of

Rights ch. 1, art. XIII (Vt. 1777): Deel. of Rights para. XII

(Va. 1776). Pennsylvania and Vermont connected that provision

to protection for freedom of speech. See generally Bogen, infra,

at 441 n.55. Of the remaining four states, Rhode Island and

Connecticut had not drafted state constitutions, and New York and

New Jersey did not provide specific state constitutional guarantees

of freedom of press and speech. See Leonard A. Levy, Emergence

of a Free Press 189 (1985).

Early statutes show efforts to regulate merchants and

shopkeepers,’ liquor and taverns,® potash,’ malt," a va-

riety of commodities,” attorneys,’* and doctors.* Among

other things, these statutes required licenses, prevented

charging of unreasonable prices, and set standards for in-

spection and weighing of commodities. The statutes sur-

veyed, however, reveal no restrictions on the right of these

regulated industries to advertise lawful products and serv-

ices. Sellers were left to their own creativity in seeking

to attract attention to their wares. And buyers were pro-

tected against potentially false or misleading claims by the

common law, tempered by the doctrine of caveat emptor.

See, e.g., Borrekins v. Bevan, 3 Rawle 23, 37 (Pa. 1831)

(“A sample, or description in a sale note, advertisement,

8 See, e.g., Act for Punishing and Preventing Oppression, 1635

(amended 1730), The Public Statute Laws of Connecticut 544

(1808).

9 See, e.g., Act Regulating Licensed Houses, 1791, The Laws of

the State of New Hampshire 373-76 (1797); Act to Lay A

Duty on Strong Liquors, and For Regulating Inns and Taverns,

1801, Laws of the State of New York 439-43 (1802); Act for

Regulating Ordinaries, Houses of Entertainment and Retailers of

Spirituous Liquors, 1798, The Public Acts of the General Assembly

of North Carolina 122-23 (1804).

10 See, e.g., Act to Regulate the Exportation of Potash and Pearl

Ash, 1792, The Laws of Maryland 119-92 (1811); Act to Regulate

Flax-Feed, Pot-ash and Pearl Ash for Exportation, 1785, The Laws

of the State of New Hampshire 377-79 (1797).

ll See, e.g., Act for the Better Making and Measuring of Malt,

1700, The Laws of the Commonwealth of Massachusetts 186 (1807).

12 See, e.g., Act for Regulating the Exportation of Tobacco and

Butter, and the Weight of Onions in Bunches, and the Size of

Lime-Casks, 1785, The Laws of the Commonwealth of Massachu-

setts 320-23 (1807); Act to Prevent Frauds and Deceits in Selling

Rice, Pitch, Tar, Rosin, Turpentine, Beef, Pork, Shingles, Stoves

and Fire-wood, and to Regulate the Weighing of the Merchandise

in this Province, 1746, The Public Law of the State of South

Carolina 208-10 (1790).

13 See, e.g., Act Regulating the Admission of Attornies, 1785,

The Laws of the Commonwealth of Massachusetts 318-19 (1785).

14 See, e.g., Act to Regulate the Practice of Physic and Surgery,

1783, Laws of the State of New Jersey 7-8 (1783).

bill of parcels, or invoice, is equivalent to an express war-

ranty that the goods are what they described”); see also

infra Section 1.C.3; see generally Walon H. Hamilton,

The Ancient Maxim Caveat Emptor, 40 Yale L. Rev.

1133 (1931).

The sole limitations placed on advertising restricted the

promotion of certain prohibited activities. For example,

during the period surrounding the ratification of the Bill

of Rights, several states prohibited or restricted lotteries

as well as their advertisement and promotion.” -Massa-

chusetts, for example, enacted a statute in 1785 that im-

posed, with respect to unauthorized—and therefore illegal

—lotteries, separate fines for setting up a lottery and “aid-

ing and assisting in any such lottery, by printing, writing,

or in any other manner publishing an account thereof, or

where the tickets may be had.” Act for the Suppression

15 See, e.g., Act For the Prevention of Lotteries, 1792, the Laws

of Marylard 189-90 (1811) (prohibiting lotteries, as well as their

“propos[al] to the public,” absent permission of the legislature)

Act for the Suppressing of Lotteries, 1791, the Laws of the State

of New Hampshire 339 (1805) (separate penalties for setting up

a lottery and “aiding or assisting . . . by printing, or any other

ways publishing an account thereof”); Act of Feb. 13, 1797, The

Laws of the State of New Jersey 227-28 (1800) (fining those who

print, write or publish any account of where tickets are available

or who “expose to public view, any . . . advertisement or advertise-

ments of or concerning such lottery.”); Act to Prevent Private Lot-

teries. to remit certain Penalties, and to Repeal the Acts therein

Mentioned, 1783, Laws of the State of New York 35-38 (1802)

(providing penalties for being “in any way concerned” with lot-

teries not authorized by the state, including “printing, writing, or

any other ways publishing an account thereof’); Act for Suppress-

ing and Preventing of Private Lotteries, 1762, The Public Law of

the State of South Carolina 256-67 (1790) (fining anyone “who shall

make, writ, print or publish, or cause to be written or published,

any scheme or proposal” for a private lottery). Only Pennsylvania

completely outlawed lotteries (and their advertisement). Act for

the More Effectual Suppressing and Preventing of Lotteries, 1762,

A Digest of the Acts of the General Assembly of Pennsylvania 584-

85 (1841) (setting 20 pound fine for, inter alia, advertising or

causi > to be advertised any lottery).

of Lotteries, 1785, The Laws of the Commonwealth of

Massachusetts 252-53 (1807).

A handful of states prevented the advertisement of

other illegal activities. For example, Connecticut and

Pennsylvania prohibited staging and advertising horse

races. Act to Prevent Horse Racing, 1803, The Public

Statute Laws of the State of Connecticut 381-82 (1808);

Act Against Horse Racing, 1820, A Digest of the Acts

of the General Assembly of Pennsylvania 450-51 (1841).

And Rhode Island prohibited the erection of a sign “for

the keeping of a public house” without first obtaining an

innkeeper’s license. Act Enabling the Town-Councils of

Each Town In This State to Grant Licenses, 1728, The

Public Laws of the State of Rhode-Island and Providence

Plantations 391-94 (1798). Despite these regulations,

however, the state legislatures were not opposed to adver-

tising in general.

3. Common law exceptions to free commercial

speech involving false or misleading speech evi-

dences the colonial conception of a “free press”

including advertising.

The First Amendment was adopted against the back-

ground of a venerable common-law tradition prohibiting

commercial misrepresentation (as well as the torts of libel

and slander). Sir William Blackstone acknowledged that

“every kind of fraud is equally cognizable . . . in a court

of law.” 3 William Blackstone, Commentaries *431.

Justice Story’s treatise Equity Jurisprudence addressed that

“old head of equity,” the law of misrepresentation, in

great detail:

Where the party intentionally, or by design, misrep-

resents a material fact, or produces a false impres-

sion, in order to mislead another, or to entrap or to

cheat him, or to obtain an undue advantage of him;

in every sense there is a positive fraud in the truest

sense of the terms.

Joseph Story, Equity Jurisprudence, § 192 (1836). That

liability could accompany this category of speech demon-

ch inc Altai te NAS SE a an RC AMET TT ee

strates that it was beyond what was understood to be

constitutionally protected. A proposed draft of the First

Amendment by Thomas Jefferson shows that the free

press envisioned by the Framers did not encompass the

publication of falsehoods—commercial or noncommercial:

le shall not be deprived or abridged of their

8 py or to write or otherwise to publish any

thing but false facts affecting injuriously the life,

liberty, property or reputation of others or affecting

the peace of the confederacy with foreign nations.

15 The Papers of Thomas Jefferson 367, 367 (J. Boyd

ed., 1958).

Advertisements of unlawful products were also outside

the scope of constitutional protection. According to

Blackstone, the common law considered it a criminal of-

fense to “procure, counsel, or command another to oom

mit a crime.” 4 William Blackstone, Commentaries ‘36

(defining an accessory before the fact); Rex v. Higgins,

2 East 5, 102 Eng. Rep. 269, 276 (K.B. 1801) ( A

solicitation or inciting of another, by whatever means it

is attempted, is an act done; and that such an act done

with a criminal intent is punishable by indictment has

been clearly established by . . . several cases. ); see gen-

erally Pittsburgh Press Co. v. Pittsburgh Comm'n on Hu-

man Relations, 413 U.S. 376 (1973). Advertising un-

lawful products could thus be prohibited at common law

as solicitation to commit a crime.

4. Fully protecting advertising is consistent with

the Framers’ political philosophy, which equated

liberty and property.

The inextricable link between commercial and other

speech is also reflected in the Framers’ political philoso-

phy, which generally equated liberty and property rights.

In seventeenth and eighteenth century England there were

two reigning justifications for free expression: the idea

that free speech “was an instrument to some collective

good” and the notion that free speech was a natural

property right of the individual.” John O. McGinnis, The

Once and Future Property-Based Vision of the First

Amendment, 63 U. Chi. L. Rev. 49, 58 (1996).

In this tradition, freedom of speech and property rights

were seen as essential parts of an individual’s liberty, an

understanding derived from the philosophical writings of

John Locke, who defined the “state of perfect freedom”

as the ability of people

to order their actions and dispose of their possessions

and persons as they think fit, within the bounds of

the law of nature, without asking leave or depending

upon the will of any other man.

John Locke, The Second Treatise on Government 4

(Thomas P. Peardon ed., Bobbs-Merrill 1st ed. 1975) 16

As one newspaper commentator put it.

Liberty and Property are not only join’d in common

discourse, but are in their own natures so nearly

ally’d that we cannot be said to possess the one with-

out the enjoyment of the other.

Boston Newsletter, February 16, 1772, quoted in Clinton

Rossiter, Seedtime of the Republic 379 (1953).

The libertarian Cato drew on Locke in equating liberty

and property. Applying this view to the freedom of

16 George Mason’s Virginia Declaration of Rights further evi-

dences this Lockean linkage of liberty and property, stating that

among the natural rights of man was “the Enjoyment of Life and

Liberty, with the Means of acquiring and possessing Property, and

pursuing and obtaining Happiness and Safety.” Decl. of Rights

§ 1 (Va. 1776).

17 Cato’s Letters were published from 1720 to 1723 and widely

circulated in the colonies as “the most popular, quotable, esteemed

source of political ideas in the colonial period.” Rossiter, supra, at

141. His articulation of the tie between property rights and free

speech was enormously influential in colonial America. Jeffrey A.

Smith, Printers and Press Freedom: The Ideology of Early Amer-

ican Journalism 25 (1988). In fact, Cato’s Essay on Free Speech,

first printed in America by Benjamin Franklin in 1722, contained

the seed of the First Amendment’s press clause. See generally

David S. Bogen, The Origins of Freedom of Speech and Press, 42

Md. L. Rev. 429, 444 (1983).

expression, Cato articulated the importance of free speech

and its inextricable link with property rights:

This sacred Privilege is so essential to free Govern-

ment, that the Security of Property, and the Freedom

of Speech, always go together; and in those wretched

countries where a Man cannot call his Tongue his

own, he can scarce call any Thing else his own.

John Trenchard & Thomas Gordon, 1 Cato’s Letters 110

(Ronald Harrow ed., Liberty Classics ed. 1995) ( Essay

No. 15, Of Freedom of Speech: That the Same is Insep-

arable from Publick Liberty, Feb. 4, 1720).

Distinguishing between the value of commercial and non-

commercial speech thus would never have occurred to the

Framers, who essentially regarded all rights, including the

right to free speech, as a form of property right shielded

from government interference. James Madison, the drafter

of the First Amendment, echoed Locke and Cato, writing:

In its larger and juster meaning, [property] em-

braces every thing to which a man may attach a

value and have a right; and which leaves to every

one else the like advantage.

In the former sense, a man’s land, or merchandise,

or money is called his property.

In the latter sense, a man has a property in his

opinions and the free communication of them.

James Madison, Property, The National Gazette, Mar.

27, 1792, reprinted in James Madison, 14 Papers of James

Madison 266-68 (Robert A. Rutland & Thomas Mason

eds., 1983).

This linkage of liberty and property rights strongly sug-

gests that colonial Americans viewed the First Amendment

as protecting far more than just political speech. As one

contributor writing under the pseudonym “Philalethes” de-

clared in Boston’s Herald of Freedom in 1788, Americans

are nurtured in the ennobling idea that to think

what they please, and to speak, write and publish

their sentiments with decency and independency on

every subject, constitutes the dignified character of

Americans.

Boston Herald of Freedom, Sep. 15, 1788, quoted in Smith,

supra, at 19. Commercial matters were also to be counted

among the “subjects” to which the freedom of speech ob-

tained. As leading Anti-Federalist Richard Henry Lee said

in his demand for a bill of rights, “A free press is the chan-

nel of communication as to mercantile and public affairs.”

Letter XVI, Jan. 20, 1788, in An Additional Number of

Letters from the Federal Farmer to the Republican 151-

53 (1962). In keeping with this recognition that adver-

tising was a critical part of the press whose freedom the

Framers sought to guarantee, the text of the First Amend-

ment draws no distinction between the commercial and

non-commercial aspects of the press.

Il. THE PERVASIVENESS OF ADVERTISING AND

STATE LEGISLATIVE PRACTICE AT THE TIME

OF PASSAGE OF THE FOURTEENTH AMEND.

MENT ARE CONSISTENT WITH THE VIEW THAT

COMMERCIAL SPEECH IS ENTITLED TO FULL

FIRST AMENDMENT PROTECTION.

An examination of state legislative practices at and

around the time the Fourteenth Amendment was ratified

confirms the conclusion that truthful messages about law-

ful products or services are entitled to full protection. This

period marked a robust increase in the prominence and

utility of advertising. States, while adopting some restric-

tions on advertising that reflected the general shift from the

common law tradition to statutory law, see, e.g., Morton

Keller, Affairs of State 347 (1977), continued to focus

their regulatory efforts on limiting advertising for illegal

products and services."

18 This conclusion rests upon an examination of all state codes

published closest to 1868. For states with less frequently published

codes, the last code published before 1868 and the first one published

after 1868 were examined to determine the state of the law at

the time of incorporation. Although unable to obtain the State

A. Commercial Speech Was An Integral Part of

American Life During Reconstruction.

Advertising was “vigorous and thriving by the mid-

nineteenth-century mark.” Wood, supra, at 158. As one

publisher in 1847 observed, “advertising is news. People

wanted to read it just as much as they wanted to read the

reports of the day’s happenings.” Jd. at 159-60. To illu-

strate, a typical issue of the New York Herald in 1860

carried thousands of small-space advertisements. Like

many of its colonial counterparts, its front page bore no

editorial matter, only advertising. /d. at 166-167; Mott,

supra, at 397-98, 593-94. Only the intense interest in the

Civil War supplanted advertising as the front-page mate-

rial in most papers. Mott, supra, at 397; Presbrey, supra,

at 259. Nonetheless, even in 1869, the New York Herald

typically held eight columns of news, and fifty columns of

advertising. Wood, supra, at 169.

Although the Civil War may have pushed advertising

from the front page, the demonstrated ability of advertis-

ing to sell Union war bonds led to a vast expansion in

advertising’s use. Presbrey, supra, at 253. A year after

the close of the Civil War:

Every rock with surface broad enough, and facing

in a direction from which it could be seen, and every

cliff which some adventurous painter had been able

to climb was daubed over with signs. Every fence,

every unoccupied building, the boardings around

every large construction site, even the New York

curbstones, shouted advertising messages. Fences

along the highways and railroad rights of way wore

advertising in letters from six inches to two feet high.

Bridges, especially covered bridges, bore huge ad-

vertising signs.

Wood, supra, at 182; see also Presbrey, supra, at 255.

Advertising’s prominence also led to other innovations

including the first advertising agent in 1841, the first news-

Code of Wisconsin, emicus did examine the other thirty-seven

states admitted to the Union by 1880, as well as the Territorial

Codes of Utah, Washington, Wyoming, and New Mexico.

paper directory in 1869, and the first market survey in

1879. G. Allen Foster, Advertising: Ancient Market Place

to Television 48-49, 126-31 (1967); Wood, supra, at 142.

In 1867, Galaxy Magazine described advertising in the

United States as having arrived at the point at which

the names of successful advertisers have become

household words where great poets, politicians, phi-

losophers and warriors of the land are as yet unheard

of; there is instant recognition of Higg’s saleratus and

Wises soap even where the title of Tennyson’s last

work is thought to be “In the Garden,” and Long-

fellow understood as the nickname of a tall man.

Presbrey, supra, at 255. Advertising had become a major

part of American culture.

B. State Legislative Practice During Reconstruction

Is Consistent With Full First Amendment Protec-

tions for Truthful Commercial Speech Promoting

Lawful Products and Services.

Even as advertising emerged as an increasingly power-

ful societal force, state governments allowed it to grow un-

checked, primarily restricting the promotion of illegal prod-

ucts or services only.” The restrictions on advertising that

did exist were aimed at the illegality of the advertised con-

duct, rather than advertising itself. For example, Delaware

barred advertising by unlicensed lottery retailers only. Del.

Rev. Stat., ch. 98, v. 12, § 6 (1874). Similarly, Vermont

barred the advertising of lotteries “not granted by the leg-

islature of this state or of the United States.” Vt. Stat., tit.

34, ch. 119, § 7 (1870).

19 For example, as before, a number of states restricted lottery

advertising. See, e.g. Cal. Penal Code § 323 (1872): Conn. Gen.

Stat., tit. 12, § 150 (1866); Del. Rev. Stat., chap. 98, v. 12, $6

(1874); Digest of Laws of Fla. ch. 80, §4 (1881): Iowa Code

§ 4043 (1873); Compiled Laws of Kan., ch. 31, § 342 (1885): Ky.

Rev. Stat., ch. 28, art. 21, § 4 (1860 & Supp. 1866); Me. Rev. Stat..

tit. 11, ch. 128, § 13 (1884); Md. Code, art. 30, § 114 (1860): Miss.

Rev. Code § 2605 (1871); Compiled Laws of Nev. § 2498 (1873):

N.Y. Rev. Stat., ch. 20, tit. 8, § 53 (1875); Ore. Gen. Laws, Crim.

Code, ch. 8, § 661 (1874); Compiled Laws of Terr. of Utah § 2002

(1876) ; Vt. Gen. Stat., ch. 119, § 7 (1870).

In response to an aggressive anti-abortion campaign be-

ginning in the 1840s, many states also adopted extensive

abortion restrictions. James C. Mohr, Abortion in Amer-

ica 147-170 (1978). Some of these restrictions imposed

penalties on “[e]very person, who shall, by publication,

lecture . . . or by advertisement, or the sale or circulation

of any publication, encourage or prompt the commission of

[a miscarriage].” Conn. Gen. Stat., tit. 12, ch. 2, § 25

(1866).7° Other then-illegal products or activities that

could not be advertised included prize fights,*" and obscene

books.” Similarly, West Virginia, New York, and Kansas,

like their modern counterparts, barred obscene advertis-

ing. See W. Va. Code, ch. 149, § 11 (1868); N.Y. Rev.

Stat., pt. 4, ch. I, tit. 6, § 77 (1875); Compiled Laws of

Kan, ch. 31, § 342 (1885).

Despite the absence of legislation barring false and mis-

leading advertising of lawful products and services, as ad-

vertising increased, so too did the recognition that, if

false, it could cause harm. Thus, beginning around 1864,

certain more successful newspapers refused to accept ads

for questionable patent medicines and quacks. Wocd,

supra, at 181. Indeed, many papers warned their reacers

against these disreputable advertisers. And in 1872, the

national government enacted regulations aimed at restrict.

ing the dissemination of fraudulent ads through the mai!.*

20 See also Cal. Penal Code §317 (1872); Digest of Laws of

Fla., ch. 59, § 10 (1881); Compiled Laws of Kan., ch. 31, § 342

(1885); Md. Laws, ch. 179, §2 (1868); Mass. Gen. Stat. ch. 165,

§ 10 (1860); NJ. Rev. Stat., Crimes § 44 (1874); N.Y. Rev. Stat.

pt. 4, ch. I, tit. 6, § 78 (1875); Ohio Rev. Stat., ch. 2732, § 1 (1860

& Supp.); R.1. Gen. Stat., ch. 232, § 23 (1872); Compiled Laws of

Terr. of Utah, Penal Code, tit. 9, ch. 8, § 162 (1876). Notably,

these restrictions on abortion advertising applied with equal force

to all speech regarding abortion, commercial or non-commercial.

21 Compiled Laws of Kan., ch. 31, § 338 (1885).

22 Cal. Penal Code §311(4) (1872); Compiled Laws of Terr. of

Utah, Penal Code, tit. 9, ch. 8, § 162 (1876).

23 See Act of June 8, 1872, ch. 335, 17 Stat. 283 (codified at 39

U.S.C. § 3005 (1994)) (authorizing the Postmaster General, after

To the extent that this Court addressed issues relating

to advertising during and immediately after Reconstruc-

tion, its decisions were consistent with the view that ad-

vertising should be accorded the same protection as other

forms of speech. To illustrate, in Ex parte Jackson, 96

U.S. 727 (1877), the Court held that Congress’s 1868

ban on the advertising of lotteries by mail did not violate

the First Amendment. The opinion primarily dealt with

Congress’s power over the postal system, stating that

“{t}he right to designate what shall be carried necessarily

involves the right to determine what shall be excluded.”

96 U.S. at 732. But this Court treated lottery advertise-

ments in the same way that it treated material that today

would be fully protected by the Constitution.

Ill. LOWER PROTECTION FOR COMMERCIAL

SPEECH IS A TWENTIETH-CENTURY PHENOM-

ENON THAT HAS ITS ORIGINS IN A DISEN-

CHANTMENT WITH ECONOMIC LIBERTIES AND

CONFUSION WITH ECONOMIC SUBSTANTIVE

DUE PROCESS.

A. The Pervasiveness of Advertising Grew in the

Early Twentieth Century.

Advertising experienced unprecedented growth and

prestige in the early twentieth century. By 1898, a sur-

vey by the Press and Printer of Boston counted 2,583

companies that advertised in regular periodicals of general

a hearing, to issue a Fraud Order directing the local postmaster

to cease delivering mail or paying postal money orders addressed

to a merchant determined to have fraudulently obtained money or

property via mail).

*4The 1904 St. Louis World’s Fair recognized the growth of

the industry and staged “Ad-Men’s Day” with a meeting grandly

named “The International Advertising Association.” George French,

20th Century Advertising 119 (1926). Professionalization of ad-

vertising continued with the creation of the Advertising Federation

of America, which was formed in 1905. Wood, supra, at 335. Other

advertising groups were formed later, including the New York

Advertising League in 1906 and the American National Advertising

Managers in 1910. French, supra, at 131, 141.

circulation. Presbrey, supra, at 362. Advertisements dur-

ing World War I helped to sell $24 billion in war bonds

to 22 million Americans and raise $400 million for the

Red Cross. Jd. at 565. One observer remarked:

Advertising did not win the war, but it did its bit so

effectively that when the war was over advertising

... had the recognition of all governments as a prime

essential in any large undertaking in which the active

support of all the people must be obtained for success.

Id. at 566.

As was the case after the Civil War, this widespread

recognition of the power of advertising in war was not

lost on manufacturers and retailers when peace returned.

Total investment in advertising soared from $1.5 billion

in 1918 to almost $3 billion in 1920 and continued to

grow throughout the decade. Wood, supra, at 364-365.”

B. Disenchantment With Advertising Became Appar-

ent as a Result of Reform Movements and the

Great Depression.

As the Gilded Age gave way to the Progressive Era

and the notion that civil liberties differed from economic

liberties began to take hold, disenchantment with unfet-

tered capitalism, and advertising, grew. Matthew Joseph-

son, The Robber Barons 445-53 (1934); see generally

Richard Hofstadter, The Age of Reform (1955). Maga-

zines that had once accepted patent medicine advertise-

ments—such as the Ladies Home Journal and Collier's

—led the charge in 1904 and 1905 against the fraudulent

claims made by the industry.** Wood, supra, at 327-30.

25 Part of this growth stemmed from the use of radio as a new

advertising medium. Although the first radio ad did not air until

1923, by 1929 the industry received an estimated $15 million in

advertising revenues for its roughly 500 broadcast stations. Pres-

brey, supra, at 578.

26 Other targets of early reformers included billboards and other

advertising perceived to be littering the landscape and testimonial

advertising by celebrities that did not disclose that a fee had been

paid for their endorsement. Wood, supra, at 347, 392-93.

Some papers, including the Scripps-McRae League of

Newspapers, appointed censors to scrutinize all advertis-

ing copy for questionable claims. Id. at 334. The public

outcry against adulterated and dangerous foods and drugs

ultimately led to the passage of the federal Food and

Drug Act of 1906, which forced manufacturers to justify

their claims and list product ingredients. Jd. at 333.

Because of these and other concerns the advertising

industry in 1911 pushed for a model statute barring “un-

true, deceptive, or misleading” advertising. Hurnard J.

Kenner, The Fight for Truth in Advertising 28 (1936).

By 1920, thirty-seven states had adopted the Advertising

Federation of America’s model antifraud statute, Wood,

supra, at 336, which largely represented a codification of

long-standing common-law restrictions on false or mis-

leading commercial messages. See William F. Walsh, A

History of Anglo-American Law 328-329 (1932).

The Depression hit advertising hard in terms of both

income *’ and, perhaps more importantly, in public esteem.

Wood, supra, at 418. Critics charged that advertising was

wasteful, merely adding to the consumer’s cost. /d. at 424.

Advertising was attacked because

[t}here had to be a villain. Advertising as the public

voice of industry and business was obvious and acces-

sible to attack. Advertising had been used to urge

people to expenditures they could not afford, to lure

with false promises, to lull into false security. Adver-

tising was to blame, and shrill cries arose for its an-

nihilation.

Id. at 418.% This national mood during the Depression

spurred calls for increased restrictions on advertising. The

27 Following the stock market crash, advertising revenues tum-

bled from $3.4 billion in 1929 to $1.3 billion in 1933. Wood, supra,

at 417.

28 Public skepticism about the role of advertising in the Ameri-

can economy rose significantly. The consumers’ movement formed

during this era, producing best-selling exposés of advertising prac-

tices with such lurid titles as 100,000,000 Guinea Pigs, Eat, Drink

and Be Wary, and Partners in Plunder. Id. at 419-420.

federal government aggressively responded to the perceived

excesses of advertising through New Deal enactments.”

C. The Incorrect Association of Advertising and Eco-

nomic Liberties Led to the Misguided Distinction

Between Commercial and Non-commercial Speech.

Although disenchantment among the body politic with

economic liberties led to increased state regulation of the

economy, this Court initially acted as a brake on that

sentiment, employing the doctrine of substantive due

process to strike down many state laws. Before 1919, the

Court treated political speech as subject to the states’

police power, power from which economic activities were

relatively free. But

the Court did not treat all speech as a political ac-

tivity subject to government ordinance. Some speech

was protected as a valuable economic activity... .

{F]ree trade in ideas became a commercial canon long

before it would become the metaphorical key to con-

stitutional protection of political speech.

Rudolph J.R. Peritz, Competition Policy in America,

1888-1992 100 (1996). In contrast to the First Amend-

ment, which this Court had not treated as applicable to

constrain state power, the Fourteenth Amendment’s due

process clause was interpreted to apply to the states.*°

Thus, most judicial challenges during this period to

restrictions on advertising relied on a substantive due

process claim that the restrictions interfered with the pur-

suit of a lawful business rather than advancing First

Amendment claims. For example, in Halter v. Nebraska,

29 Indeed, Professor Bruce Ackerman has argued that these and

other changes brought about by the New Deal amounted to a de-

cisive watershed in constitutional law. Bruce Ackerman, Consti-

tutional Politics/Constitutional Law, 99 Yale L.J. 453, 510-514

(1989). See also David Yassky, Eras of the First Amendment, 91

Colum. L. Rev. 1699 (1991) (defining the New Deal as one of three

“First Amendment Eras”).

30 It was not until 1931 that this Court first explicitly held that

the First Amendment applied to the states. See Stromberg v.

California, 283 U.S. 359, 368 (19381).

genet a ea hat

205 U.S. 34 (1907), this Court upheld a state law bar-

ring use of the American Flag on beer bottles. The parties

failed to raise a First Amendment challenge, instead rely-

ing on a due process claim. State courts during this

period also analyzed, and in many cases invalidated,

challenges to advertising regulations under the rubric of

substantive due process.**

By the time the Court decided Valentine v. Chrestensen,

316 U.S. 52 (1942), however, in which it first stated

that advertising was outside the protection of the First

Amendment, the notion of substantive due process had

been rejected, and review of economic legislation reduced

to “rational basis” scrutiny.** Valentine’s dismissive

treatment of commercial speech seems most closely linked

to the Court’s rejection of economic substantive due proc-

ess, rather than any evaluation of the First Amendment

guarantees envisioned by the Founders. Thus, what has

been said about the Contracts Clause may be said about

31 See, e.g., Seattle v. Proctor, 48 P.2d 238, 239 (Wash. 1935)

(striking down a city statute compelling businesses to disclose “the

number of such . . . [articles] and the lowest price at which each

of said articles were offered for sale to the public prior to said

advertisement.”); Ware v. Ammon, 278 S.W. 593, 595 (Ky. Ct.

App. 1925) (holding unconstitutional a bar on advertising by dry

cleaners without the fire marshal’s permission to engage in busi-

ness) ; see also State ex rel. Booth v. Beck Jewelry Enters., Inc., 41

N.E.2d 622, 626 (Ind. 1942) (“Truthful price advertising is a legiti-

mate incident to a lawful merchandising business. Deprivation of

the right so to advertise has been held to violate the due process

clause of the Fourteenth Amendment.”) (citations omitted).

32 See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) :

United States v. Carolene Products Co., 304 U.S. 144, 152 (1938)

(“regulatory legislation affecting ordinary commercial transactions”

was not “to be pronounced unconstitutional unless . . . it [does not

rest] upon some rational basis”); see also Yassky, supra, at 1729-

1730 (describing the West Coast Hotel line of cases as legitimizing

the activist state and repudiating the prior era’s Lochner-style

constitutionalization of rights to property and contract). But see

Needham v. Proffitt, 41 N.E. 606, 608 (Ind. 1942) (striking down

statute prohibiting funeral directors from advertising under state

free speech guarantee).

the protection of commercial speech: “misinterpreted as

a form of economic substantive due process, [protection

of commercial speech] was wrongly discredited when that

doctrine [of substantive due process] was rightly dis-

carded.” Doug A. Kmiec & John O. McGinnis, The Con-

tract Clause: A Return to the Original Understanding, 14

Hastings L. Q. 525, 526 (1987).

Thus, the differentiation between commercial and non-

commercial speech is properly understood as an outgrowth

of twentieth-century disenchantment with property rights

and economic liberties, and the mislabeling of advertising

as a substantive due process right rather than a First

Amendment freedom. The distinction between commercial

and non-commercial speech, however, is inconsistent with

the text and history of the First and Fourteenth Amend-

ments, as well as with the long-standing “traditions of the

American people.”

IV. THIS PROPOSED INTERPRETATION OF THE

FIRST AMENDMENT IS NOT INCONSISTENT

WITH THIS COURT'S PRIOR PRECEDENT AND

WILL NOT DRAMATICALLY ALTER THE FACE

OF FIRST AMENDMENT JURISPRUDENCE.

Removing the distinction between commercial and non-

commercial messages is consistent with most commercial

speech cases this Court has decided. Indeed, in most cases,

the court has found restrictions on commercial speech to

be unconstitutional. See, e.g., 44 Liquormart v. Rhode Is-

land, 517 U.S. 484 (1996); Rubin v. Coors Brewing

Co., 514 U.S. 476 (1995) (invalidating a federal law

barring brewers from displaying alcoholic content of their

beers on the products’ labels); Edenfield v. Fane, 507 U:S.

761 (1993) (striking down a restriction preventing Florida

CPAs from making uninvited in-person visits or telephone

calls to potential clients); City of Cincinnati v. Discovery

Network, 507 U.S. 410 (1993) (striking down a ban pro-

hibiting newsracks used to distribute commercial handbills

on public property). This analysis would also have the

impact of avoiding the anomalous results that the Central

a eee. eT Ts

Hudson test occasionally allows. See, e.g., Posadas de

Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478

U.S. 328 (1986).

The proposed interpretation would not, however, pre-

vent government regulation of false and misleading adver-

tising. As shown, the First Amendment has always been

understood to allow regulation of such speech. This view

is consistent with Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc., 425 U.S. 748

(1976), where this Court granted First Amendment pro-

tection to commercial speech but held that the government

had the power to ensure that commercial messages were

not false or misleading. 425 U.S. at 771-72 n.24. Simi-

larly, the government would not be prohibited from re-

stricting advertising of illegal products and services.

rhus, affording commercial speech full protection is con-

sistent with the traditional understanding of the First

Amendment and is not contrary to the established prece-

dents of this Court.

Vv. THE FEDERAL BAN ON BROADCAST ADVER-

TISING OF CASINO GAMBLING IS PROHIBITED

BY THE FIRST AMENDMENT.

Assessed under the level of scrutiny accorded fully pro-

tected speech, this becomes an easy case.** First, the gov-

33 Products and services that could not be advertised in the

colonial and Reconstruction eras were prohibited in their entirety

(e.g., horse-racing and lotteries). Such activities, when lawful,

could be advertised. There is also no basis for relying on such

statutes to uphold advertising restrictions on products that may

lawfully be marketed to the overwhelming majority of the popula-

tion. See Dunagin v. City of Oxford, 718 F.2d 738, 748 (5th Cir.

1983) (en banc) (protection of commercial speech “would disappear

if its protection ceased whenever the advertised product might be

used illegally’’).

34 As the Petitioners’ brief conclusively demonstrates, however,

assessed under the Central Hudson analysis, the broadcast ban is

unconstitutional. See Petitioners’ Brief. Certainly, if the regula-

tion were invalid under this lower level of scrutiny, it would fail

under the more searching review required for fully protected

speech.

ernment cannot support its claim that curbing gambling is

a compelling governmental interest when such activity is

not illegal. Moreover, this regulation is not sufficiently

narrowly tailored to serve the government’s interest: the

very fact that the government allows advertising of casino

gambling through other media implicates the effectiveness

of a ban on the broadcasting of casino gambling ads. Sim-

ilarly, the Fifth Circuit argument about the “powerful

sensory appeal of gambling conveyed by television and

radio,” Greater New Orleans Broadcasting Ass'n v. United

States, 149 F.3d 334, 340 (Sth Cir. 1998), fails in light

of the exceptions to the broadcast ban which allow adver-

tising of other forms of gambling. 18 U.S.C. § 1307.

CONCLUSION

For the reasons set forth herein, the Court should re-

verse the Fifth Circuit’s decision. In the process, the Court

should make clear that truthful commercial speech about

lawful products, services and activities should be accorded

the same level of constitutional protection as non-com-

mercial speech.

Respectfully submitted,

Of Counsel RICHARD E. WILEY

WALLACE S. SNYDER Counsel of Record

President DANIEL E. Troy

JEFFREY L. PERLMAN BENJAMIN B. REED

Senior Vice President WILEY, REIN & FIELDING

Government Affairs 1776 K Street, N.W.

AMERICAN ADVERTISING Washington, D.C. 20006

FEDERATION (202) 719-7000

1101 Vermont Avenue, N.W. Counsel for Amicus Curiae

Suite 500

Washington, D.C. 20005

February 25, 1999

‘

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