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

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(il Supreme Court, U.S.

No. 98-387 ~

In The

Supreme Court of the Uni

October Term, 1998

GREATER NEW ORLEANS BROADCASTING

ASSOCIATION, INC., et 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 OF AMICI CURIAE NATIONAL

ASSOCIATION OF BROADCASTERS, AMERICAN

ASSOCIATION OF ADVERTISING AGENCIES,

AMERICAN CIVIL LIBERTIES UNION, MAGAZINE

PUBLISHERS OF AMERICA, INC., THE MEDIA

INSTITUTE, NATIONAL NEWSPAPER

ASSOCIATION, NEWSPAPER ASSOCIATION OF

AMERICA, and OUTDOOR ADVERTISING

ASSOCIATION OF AMERICA, INC.

IN SUPPORT OF PETITIONERS

Of Counsel: P. CAMERON DeVore*

Grecory J. Kopta

Eric M. STAHL

Davis WRIGHT TREMAINE

Henry L. BAUMANN

Jack N. GoopMANn

STEVEN A. BOOKSHESTER

- NATIONAL ASSOCIATION OF LLP

BROADCASTERS 2600 Century Square

1501 Fourth Avenue

ce) ee Seattle, WA 98101-1688

Washington, DC 20036-2891

Counsel for National (A00) 622-3120

Association of Broadcasters Counsel for Amici Curiae

*Counsel of Record

Joun F. Kamp

AMERICAN ASSOCIATION OF

ADVERTISING AGENCIES

1899 L Street, N.W.

Washington, DC 20036

Counsel for American

Association Of

Advertising Agencies

Steven R. SHAPIRO

AMERICAN Crvit LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

Counsel for American Civil

Liberties Union

ANNE Noste Ervine

MAGAZINE PUBLISHERS OF

AMERICA, INc.

1211 Connecticut Avenue,

N.W., Suite 610

Washington, DC 20036

Counsel for Magazine

Publishers of America, Inc.

Jerry S. Birenz

Stape R. METCALF

c/O MAGAZINE PUBLISHERS OF

America, INc.

919 Third Avenue

New York, New York 10022

Counsel for Magazine

Publishers of America, Inc.

Laurence H. WINER

ARIZONA STATE UNIVERSITY

ScHOoL oF Law

Orange and McAllister

Streets

Tempe, Arizona 85287

Counsel for The Media

Institute

XenIA M. Boone

NaTIONAL NEWSPAPER

ASSOCIATION

1010 N. Glebe Road,

Suite 450

Arlington, Virginia 22201

Counsel for National

Newspaper Association

Davin S. J. Brown

Reneé P. Micam

NewspaPeR ASSOCIATION OF

AMERICA.

1921 Gallows Road,

Suite 600

Vienna, Virginia 22182-3900

Counsel for Newspaper

Association of America

Eric Rusin

Rusin, Winston, Diercks,

Harris & Cooke

1333 New Hampshire

Avenue, N.W.

Washington, DC 20036

Counsel for Outdoor

Advertising Association

of America, Inc.

TABLE OF CONTENTS

STATEMENT OF INTEREST... .........--cccecccees

SUMMARY OF ARGUMENT .......................

SE Pane h PR ect n ed 02d vibes Foeedes vec vecects

THE FIRST AMENDMENT STRONGLY PRO-

TECTS COMMERCIAL SPEECH...............

THE GOVERNMENT HAS NOT IDENTIFIED A

SUBSTANTIAL INTEREST THAT WOULD JUS-

TIFY RESTRICTIONS ON TRUTHFUL COM-

MERCIAL SPEECH ABOUT GAMBLING.......

THE GOVERNMENT HAS NOT SATISFIED AND

CANNOT SATISFY ITS BURDEN TO PROVE

THE CONSTITUTIONAL PERMISSIBILITY OF

ITS ADVERTISING BAN .................-45--

A. The Government Must Prove That Its Advertis-

ing Ban Directly and Materially Advances a

Substantial Interest and Cannot Rely on Pre-

sumptions to Satisfy Its Burden of Proof ....

B. The Government Cannot Prove the Challenged

Restriction Is Narrowly Tailored to Advance Its

Substantial Interest, and May Not Selectively

Ban Forms of Commercial Speech to Accom-

plish Its Asserted Goals............-..+205:

ST ws pdb onhdee bbdeeedeuaseovrencveset

TABLE OF AUTHORITIES

Page

Cases

Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305 (4th

Cir. 1995), vacated, 116 S. Ct. 1821 (1996),

reaff'd, 101 F.3d 325 (4th Cir. 1996), cert. denied,

TF SCR. Bie Gee e oscadens cdtceuewl sens 3, 13, 19

Bad Frog Brewery, Inc. v. New York State Liquor

Authority, 134 F.3d 87 (2d Cir. 1998)............... 14

Bigelow v. Virginia, 421 U.S. 809 (1975)............... 7)

Board of Trustees of State University of New York v.

Fan, Ge Gu Hae Ges ik vos epusinndus citwanll 22, 26

Bolger v. Youngs Drug Products Corp., 463 U.S. 60

CUSED cc ovaddicnaces yeahs buck eetialtaeaeee 14

Butler v. Michigan, 352 U.S. 380 (1957) .............. 14

Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York, 447 U.S. 557 (1980) ...... passim

Cincinnati v. Discovery Network, Inc., 507 U.S. 410

(SEED « 6 ti etn adh cased se pin aceaththine sees passim

Consolidated Edison Co. v. Public Service Commis-

an, GEE Dae BOO Con 0 dnhocekccacabeadedehons 27

Edenfield v. Fane, 507 U.S. 761 (1993) ........... passim

Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995) ..... s

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

GOOSED + cccncvecedine’ Pensckeiekbus ek emnaae passim

Greater New Orleans Broadcasting Association vy.

United States, 149 F.3d 334 (Sth Cir. 1998) ..... passim

TABLE OF AUTHORITIES — Continued

Page

Hamilton Amusement Center v. Verniero, 716 A.2d

I a i a 4

Ibanez v. Florida Department of Business and Profes-

sional Regulation, 512 U.S. 136 (1994) ............. 16

Lindsey v. Tacoma-Pierce County Health Department,

8 F. Supp.2d 1225 (W.D. Wash. 1998) ............ 4, 14

Nordyke v. County of Santa Clara, 933 F. Supp. 903

(N.D. Cal. 1996), aff'd, 110 F.3d 707 (9th Cir.

SOE each CEM EEER Ric hes KECESE obi s eet eiws sce. 4

Panduit Corp. v. Ali States Plastic Mfg. Co., 744 F.2d

ee nn das mahi ednesad egbe es 20

Penn Advertising of Baltimore, Inc. v. Mayor and City

Council of Baltimore, 101 F.3d 332 (4th Cir. 1996),

cert. denied, 117 S. Ct. 1569 (1997)................. 4

Players International, Inc. v. United States, 988

F. Supp. 497 (D.N.J. 1997), cert. denied, __ S. Ct.

___, 1999 WL 8447 (Jan. 11, 1999) (No. 98-721)

(Third Circuit appeal pending)................... 21, 26

Posadas de Puerto Rico Associates v. Tourism Co. of

Puerto Rico, 478 U.S. 328 (1986) .............. passim

Reno v. ACLU, 521 U.S. 844 (1997) ............... 14, 27

Rockwood v. City of Burlington, 21 F. Supp.2d 411

Ch Wi SE ct diewn ba wkeh P6n Ubbbds odo ecsseSegss ces 4

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). . passim

Schneider v. State of New Jersey, 308 U.S. 147 (1939) .... 27

Turr2r Broadcasting System, Inc. v. FCC, 512 U.S.

GEES ob cdndanedande ree dab sats otednes ae hes 16

TABLE OF AUTHORITIES — Continued

Page

United States v. Edge Broadcasting Co., 509 U.S. 418

COGN sc bcivew tea puccesavilewetecivet eau passim

Valley Broadcasting Co. v. United States, 107 F.3d

1328 (9th Cir. 1997), cert. denied, 118 S. Ct. 1050

CPGRER x iwinccknké deawenelecheneabiasbud bdadensel 4, 21

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976)........ passim

ConstTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS

OD: Camee, GONE Bic vine 6bsn dain ns 00s teri veaddes passim

OD CR eS 6 oF cack abuse cawdeesposneeees 21, 26

TS UE Se che Goce sits <nes tr esanaeennaas 12

SD Os er rn oad Cnn dh bn 06 ccd buckhnd ecuteunet oe 13

Pub. L. No. 104-169 (1996) (National Gambling

Impact Study Commission Act)...............6.6605. 26

GY Ga. Oe Paeeeee od piace teh 60 -40sacdlns Qe 13, 21

Oruer AUTHORITIES

Lotteries, Staff Report of National Gambling Impact

Study Commission, available at <http://

www.ngisc.gov/research/lotteries.html>............... 12

Native American Gaming, Staff Report of National

Gambling Impact Study Commission, available at

<http://www.ngisc.gov/research/nagaming.html>..... .. 12

Will Lester, Associated Press, Nationwide Voter Turn-

out in ‘98 Election Was Lowest in 54 Years, The

SOaMae Temes, FO FE TOO s ncccscandéves@ebeweceus 18

STATEMENT OF INTEREST

Amici Curiae are broadcasters, publishers, advertisers,

and citizens with a deep commitment to the values of free

speech.' America’s media are the conduit through which a

significant amount of commercial information is conveyed to

the public. Advertising, as this Court repeatedly has recog-

nized, is itself a valuable form of speech. Furthermore, adver-

tising revenues provide the fundamental financial support for

the media's ability to gather and report the news, comment on

political and other public events, and disseminate other forms

of speech universally recognized as vital to a fully-informed

public and the proper functioning of our democratic form of

government.

Amici, first and foremost, support full protection under

the First Amendment to the United States Constitution for the

marketplace of ideas in which citizens receive information

and make informed decisions. Broadcasters, publishers, and

advertisers are active participants in that marketplace as

speakers, as the means by which other speakers may be heard,

and as the vehicle for educating citizens to participate effec-

tively in public and private decisionmaking. Amici support

protection for commercial speech as an important part of the

marketplace of ideas, providing an unimpeded flow of truth-

ful, nonmisleading speech about lawful products. The media

are a major link between speakers (including advertisers and

the businesses they represent) and their audience (con-

sumers), and the First Amendment was intended to foster the

interests of both.* Amici, therefore, support First Amendment

' Written consent of both parties to the filing of this brief has been

filed with the Clerk of the Court as required by Supreme Court Rule 37. No

party wrote any part of this brief or contributed to its financial support.

Individual amici are described in the Appendix to this brief.

2 “Freedom of speech presupposes a willing speaker. But where a

speaker exists, as is the case here, the protection afforded is to the

communication, to its source and to its recipients both.” Virginia State Bd.

of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,

protection of truthful and nonmisleading commercial speech

concerning lawful products, services, and activities, including

gambling. The ability of advertisers to disclose and con-

sumers to receive information about such activities is instru-

mental to making fully informed decisions. Governmental

restrictions on the public availability of that information, such

as the advertising ban at issue in this case, undermine not

only the market for a particular product or service but also the

discussion about public policy issues concerning that product

or service.

The continuing efforts of government at all levels -

federal, state, and local — to advance social policy goals by

suppressing speech and keeping citizens in ignorance demand

constant vigilance, not only from the courts but from those

individuals and organizations, like Amici, who inform and

educate the public and monitor First Amendment protections.

Restrictions on truthful and nonmisleading advertising of law-

ful gambling activities are directly contrary to the theory of

unfettered access to information on which our society is

based. Amici urge the Court to provide unambiguous, pre-

scriptive guidance to both the lower courts and governmental

entities that will effectively prohibit the Government’s pater-

nalistic efforts to use public ignorance as a means of influenc-

ing citizens’ thoughts and behavior.

SUMMARY OF ARGUMENT

The vital role of th:; courts in holding Government to its

First Amendment burden of proof in defending commercial

speech regulations is a central theme of the Court’s commer-

cial speech cases. Under the Central Hudson test, particularly

as it has been enhanced in recent cases, the Government not

only must prove that its purposes in restricting commercial

speech are legitimate and substantial, but that the restriction

757 (1976). A consumer's interest in the free flow of commercial

information “may be as keen, if not keener by far, than his interest in the

day's most urgent political debate.” Jd. at 763.

directly and materially advances those purposes and is nar-

rowly tailored to be no more extensive than necessary to

achieve the Government's goals, considering alternative regu-

lations with no, or less, impact on speech. The Fifth Circuit in

this case has attempted to avoid this searching inquiry in an

effort to uphold restrictions on what some consider to be

“undesirable” communications. As explained more fully

below, this and similar cases demonstrate the need for this

Court to once again admonish the lower courts that the First

Amendment embraces just such speech.

The need to so instruct lower courts unfortunately has

heightened, rather than abated, in the wake of the Court's

most recent commercial speech decision, 44 Liquormart, Inc.

v. Rhode Island, 517 U.S. 484 (1996). While the result was

unanimous and the Justices’ separate opinions confirmed the

Court’s continued commitment to enhancing such protection,

many lower courts are failing to heed the Court's direction,

distinguishing the Court's most recent decisions and selec-

tively citing segments of earlier opinions to support a diluted

constitutional analysis. Here, for example, the Court

expressly directed the Fifth Circuit to reconsider its decision

in light of 44 Liquormart, yet the court of appeals reaffirmed

that decision, refusing to draw any significant guidance from

44 Liquormart.> Adequate First Amendment protection for

3 The Fifth Circuit majority opined that “after 44 Liquormart, what

level of proof is required to demonstrate that a particular commercial

speech regulation directly advances the state's interest is unclear,” 149 F.3d

at 337. The court continued to rely on discredited portions of this Court's

earlier commercial speech jurisprudence to reaffirm its prior decision,

claiming that “44 Liquormart does not undercut this reasoning.” /d. at 340.

The Fifth Circuit is not alone in failing to adhere to the mode of analysis

required after 44 Liquormart. See, e.g., Anheuser-Busch, Inc. v. Schmoke,

101 F.3d 325, 328-29 (4th Cir. 1996) (on remand for reconsideration in

light of 44 Liquormart, reaffirming decision upholding outdoor advertising

ban by purporting to distinguish 44 Liquormart <3 limited to “narrowest”

proposition “that keeping legal users of alcoholic beverages ignorant of

prices through a blanket ban on price advertising does not further any

commercial speech remains in jeopardy as long as the lower

courts feel free to take two steps back rather than follow this

Court’s most recent steps forward.

The Government has a limited, if any, interest in banning

advertising of private casinos. States, rather than the federal

government, regulate gambling activities, and the vast major-

ity of them permit, and in many cases promote, such activ-

ities. Moreover, the federal government has taken no steps to

discourage, and in fact encourages, Indian Tribal gaming. The

Government's nationwide attempt to keep the public in selec-

tive ignorance is unrelated to any “commercial harms” of

market fraud and overreaching and is inconsistent with the

very “federalism” interest it earlier asserted in support of an

identical advertising ban. Nor can the Government assert a

substantial interest in protecting the most vulnerable potential

legitimate end”), cert. denied, 117 S. Ct. 1569 (1997); Penn Advertising of

Baltimore, Inc. v. Mayor and City Council of Baltimore, 101 F. 3d 332 (4th

Cir. 1996) (companion case), cert. denied, 117 S. Ct. 1569 (1997); Lindsey

v. Tacoma-Pierce County Health Dept., 8 F. Supp. 2d 1225, 1228 (W.D.

Wash. 1998) (questioning 44 Liquormart because “no rationale wus able to

garner a majority”); Hamilton Amusement Ctr. v. Verniero, 716 A.2d 1137

(N.J. 1998) (purporting to distinguish 44 Liquormart as applicable only to

total speech bans, and holding “the government does not have a heavy

burden to satisfy” second prong of Central Hudson test). Even some courts

that have protected commercial speech have minimized the value of 44

Liquormart and applied a less vigorous analysis than required by this

Court. See, e.g., Valley Broadcasting Co. v. United States, 107 F.3d 1328,

1332 (9th Cir. 1997) (striking down ban on casino gambling advertising,

but deferring to presumption — discredited in 44 Liguormart — that

government's interest in discouraging public participation in gambling is

substantial enough to satisfy Central Hudson), cert. denied, 118 S. Ct.

1050 (1998); Nordyke v. County of Santa Clara, 933 F. Supp. 903 (N.D.

Cal. 1996) (enjoining restriction, but finding 44 Liquormart did not

preclude reliance on presumptions that speech restriction furthered

government interest), aff'd, 110 F.3d 707 (9th Cir. 1997); Rockwood v. City

of Burlington, 21 F. Supp. 2d 411, 422-23 (D. Vt. 1998) (enjoining

advertising restrictions but finding 44 Liquormart gave “no clear statement

of the test to apply ... .”).

8 ee: A

SE —eEeEe

recipients at the expense of the public as a whole. Govern-

ment must prove that the harms it purports to address through

commercial speech restrictions are legitimate and real. It has

not done so in this case.

The Government also cannot prove that its advertising

ban directly advances any arguably substantial interest to a

material degree, particularly in light of the internal inconsis-

tencies of the statute at issue in this case. Indeed, the Govern-

ment failed to produce any evidence of direct and material

advancement. Yet the Fifth Circuit majority relied on a con-

clusive presumption that advertising increases consumption to

conclude that the Government satisfied this Central Hudson

factor. This Court has rejected the concept of such an evi-

dence-precluding presumption. The Fifth Circuit majority

attempts to evade the Court’s latest commercial speech cases

in an effort to return to the days when the Government could

ban such speech based on nothing more than a moral dis-

agreement with its subject matter. The Court needs to reaffirm

expressly that the Government cannot be relieved of its bur-

den of proof through judicial deference to presumptions or

legislative decisionmaking, and to instruct the lower courts

that such deference would nullify the third Central Hudson

factor.

Finally, the Government failed to produce any evidence

to prove that its advertising ban is narrowly tailored to the

asserted governmental interests. Numerous obvious alterna-

tives exist to banning speech about gambling — including

Government-sponsored counter-speech and regulation

enforcement efforts — and Congress has established a commis-

sion to study and recommend just such alternatives. The Fifth

Circuit majority, however, dismissed out of hand even the

possibility that any alternatives could be effective and charac-

terized the ban as a reasonable time, place, and manner

restriction. This Court has soundly rejected such reasoning,

requiring proof that alternatives to speech restrictions would

be ineffective and requiring that a valid time, place, or man-

ner restriction on speech be unrelated to the content of that

speech. The statute at issue here, which bans private casino

advertising solely because of its content, is directly at odds

with these requirements.

The Court has applied its Centrai Hudson analysis with

increasing vigor in recent cases, yet the Fifth Circuit majority

opinion amounts to a massive retreat to a time when Congress

and State legislatures could curtail commercial speech with

virtual impunity. The Court should refuse such an invitation

to eviscerate First Amendment protection for commercial

speech. Judicial deference to legislatures on matters of consti-

tutional permissibility is fundamentally inconsistent with the

intent of the Framers and the decisions of this Court. Amici

urge the Court once again to reaffirm its commitment to

strong protection for truthful, nonmisleading commercial

speech about legal products and services, and expressly to

require that Government be held to its burden to prove the

constitutionality of any restrictions on such speech. The Fifth

Circuit majority failed to do so here, and its decision should

be reversed.

ARGUMENT

I. THE FIRST AMENDMENT STRONGLY PROTECTS

COMMERCIAL SPEECH.

This Court has repeatedly stressed the value and signifi-

cance of commercial speech since specifically extending First

Amendment protection to such speech in Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748 (1976). As the Cort has observed, commercial

speech is worthy of protection for many of the same reasons

that other forms of speech are protected:

Advertising, however tasteless and excessive it

sometimes may seem, is nonetheless dissemination

of information as to who is producing and selling

what product, for what reason, and at what price. So

long as we preserve a predominantly free enterprise

economy, the allocation of our resources in large

measure will be made through numerous private

economic decisions. It is a matter of public interest

that those decisions, in the aggregate, be intelligent

and well-informed. To this end, the free flow of

commercial information is indispensable. And if it

is indispensable to the proper allocation of

resources in a free enterprise system, it is also

indispensable to the formation of intelligent opin-

ions as to how that system ought to be regulated or

altered.

Id. at 765 (citations omitted).

Since that first recognition of the importance of commer-

cial speech protection, the Court has continued to observe that

“[t}he commercial marketplace, like spheres of our social and

cultural life, provides a forum where ideas and information

flourish. Some of the ideas and information are vital, some of

slight worth. But the general rule is that the speaker and the

audience, not the government, assess the value of the infor-

mation presented.” Edenfield v. Fane, 507 U.S. 761, 767

(1993).4

[T]he Court, and individual members of the Court,

have continued to stress the importance of free

dissemination of information about commercial

choices in a market economy; the antipaternalistic

premises of the First Amendment; the impropriety

of manipulating consumer choices or public opinion

through the suppression of accurate “commercial”

information; the near impossibility of severing

“commercial” speech from speech necessary to

democratic decisionmaking; and the dangers of per-

mitting the government to do covertly what it might

not have been able to muster the political support to

do openly.

* Accord, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 481

(1995); Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 420-21

(1993); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N_Y.,

447 U.S. 557, 561-62 (1980).

44 Liquormart, 116 S. Ct. at 1517 (Thomas, J., concurring in

judgment) (citations and footnote omitted).*

To ensure proper protection for these First Amendment

objectives, therefore, the Court has carefully scrutinized Gov-

ernment regulation of commercial speech and has required

that Government bear substantial factual burdens to justify all

such regulation. E.g., Rubin v. Coors Brewing Co., 514 US.

476, 486-91 (1995); Edenfield, 507 U.S. at 767. Such scrutiny

is no less demanding for speech that concerns so-called

“socially harmful” or “vice” activities, including the advertis-

ing of lawful gambling activities now at issue before the

Court in this case. The Court has unequivocally stated that

nothing in its prior case law “compels us to craft an exception

to the Central Hudson standard” for such speech. Rubin v.

Coors Brewing, 514 U.S. at 482 n.2. Justice Stevens reiterated

this conclusion in 44 Liguormart and explained that “[a]lmost

any product that poses some threat to public health or public

morals might reasonably be characterized by a state legisla-

ture as relating to ‘vice activity,” ” and that “recognition of

such an exception would also have the unfortunate conse-

quence of either allowing state legislatures to justify censor-

ship by the simple expedient of placing the ‘vice’ label on

selected lawful activities, or requiring the federal courts to

establish a federal common law of vice.” 517 U.S. at 514

(Stevens, J., plurality op.).

The Fifth Circuit majority in this case did not expressly

disavow this Court's rejection of a “vice” exception to First

Amendment protection for commercial speech, but plainly

tailored its analysis to the nature of the activity the restricted

speech concerns. The lower court openly expressed concern

5 Justice Thomas also observed that the Court infrequently has

departed from strict application of these principles, id., but has done so

recently only in instances in which the government's interest was ensuring

consumer protection from fraud and other forms of overreaching, rather

than indirect regulation of the underlying activity. See, e.g., Florida Bar v.

Went for It, Inc., 515 U.S. 618 (1995).

that striking down the Government's commercial speech ban

would subject citizens “to the influence of broadcast advertis-

ing for privately owned casinos” and “effectively awards

federal sanction to an activity that is again coming to be

viewed with moral and utilitarian suspicion.” 149 F.3d at

340-41. The lower federal courts are not the nation’s arbiters

of morality, nor has this Court ever conditioned protection for

the exercise of private citizens’ free speech rights on whether

the Government would be perceived as endorsing the subject

matter of that speech. Analysis of commercial speech restric-

tions under the First Amendment is not a moral litmus test but

a process in which the Government must prove that its restric-

tions are permissible, not merely rely on the assertion that the

absence of such restraints would confer governmental

approval of a controversial activity.

Truthful, nonmisleading commercial speech about a legal

product or service is a valuable component in the marketplace

of ideas, regardless of whether a segment of the population

disapproves of that product or service. Indeed, commercial

speech concerning a controversial product or service may be

particularly valuable as a source of information or spark for

public discussion about that product or service. See, e.g.,

Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (abortion

“advertisement conveyed information of potential interest and

value to a diverse audience — not only to readers possibly in

need of the services offered, but also to those with a general

curiosity about, or genuine interest in, the subject matter”).

This Court's decisions prevent the Government from resorting

to speech restrictions as the first method for attempting to

achieve its goals. The Government accordingly bears the

burden to prove that its ban on advertising for private casino

gambling permissibly restricts commercial speech — a burden

the Government has not carried.

Il. THE GOVERNMENT HAS NOT IDENTIFIED A

SUBSTANTIAL INTEREST THAT WOULD JUS-

TIFY RESTRICTIONS ON TRUTHFUL COMMER-

CIAL SPEECH ABOUT GAMBLING.

The Government does not maintain that commercial

speech prohibited under its advertising ban concerns an ille-

gal product or service or is inherently false or misleading.

Because this initial factor of the Court’s Central Hudson

analysis is not at issue, therefore, the Government must prove

that (2) a real and substantial interest underlies the Govern-

ment’s restriction on speech; (3) the restriction directly

advances the Government’s interest in a material way; and (4)

the restriction is no more extensive than necessary to achieve

that interest in light of available alternatives with less impact

on speech. E.g., Rubin v. Coors Brewing, 514 U.S. at 482. The

interests asserted by the Government are unrelated to com-

mercial harms and thus fail to satisfy the second Central

Hudson requirement. Even if one or more of those interests

could justify the casino advertising ban, the Government's

asserted interests are questionable at best, and significantly

impact the scope of the remaining Central Hudson analysis.

The Government has identified three interests that

allegedly support its ban on advertising of private casino

gambling: (1) discouraging public participation in gambling

activity; (2) protecting states in which gambling is illegal,

and (3) curbing abuse of gambling by compulsive gamblers.

As an initial matter, none of these interests concerns protect-

ing consumers from any “commercial harms” resulting from

the advertising itself, as opposed to the legal gambling activ-

ities being advertised. These purported State interests repre-

sent governmental policy objectives directed to those

gambling activities, not to any protection for consumers from

overreaching, oppressive, or fraudulent communications.

It is the State’s interest in protecting consumers

from “commercial harms” that provides “the typical

reason why commercial speech can be subject to

greater governmental regulation than noncommer-

cial speech.” Yet bans that target truthful, non-

misleading commercial messages rarely protect

consumers from such harms. Instead, such bans

often serve only to obscure an “underlying govern-

ment policy” that could be implemented without

regulating speech. In this way, these commercial

speech bans not only hinder consumer choice, but

also impede debate over central issues of public

policy.

44 Liquormart, 116 S. Ct. at 1508 (Stevens, J., plurality

opinion) (quoting Cincinnati v. Discovery Network, 507 U.S.

at 426 and Central Hudson, 447 U.S. at 566, n.9) (citations

omitted). The Government, having failed to assert an interest

in protecting consumers from commercial harms from casino

advertising, has failed to identify any substantial interest that

would justify its restrictions on commercial speech.

Even if the assertion of noncommercial interests could

hypothetically satisfy the second Central Hudson factor, the

Government's asserted interests in this case are questionable

at best and thus are entitled to minimal, if any, weight on the

Central Hudson scales. The Court has cautioned that it “must

identify with care the interests the State itself asserts. Unlike

rational basis review, the Central Hvdson standard does not

permit us to supplant the precise interests put forward by the

State with other suppositions.” Edenfield, 507 U.S. at 768

(citations omitted). The Government bears the burden to

prove that the concerns “it recites are real.” /d. at 771. The

Government has not met its burden here.

The Government first asserts that it has a substantial

interest in reducing overall public participation in gambling

activities. Congress, however, effectively has left regulation

of such activities to the States. States and local governments,

in turn, have increasingly authorized, and sponsor, gambling

activities.© These State and local governments have balanced

sponsored lotteries, an. private casinos and gambling activities are

the benefits and possible harms and concluded that permitting

their citizens to participate in such activities is in the public

interest. Most of these States also directly encourage public

participation in State-sponsored lotteries and other gaming. In

addition, Indian Tribal gaming, enabled by federal law, has

become widespread in the past decade.’ Under such circum-

stances, the Federal Government cannot legitimately claim an

overriding interest in discouraging public participation in the

very activities it has left to the States and Indian Tribes the

authority to permit and promote. See, e.g., Posadas de Puerto

Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 354

(1986) (Brennan, J., dissenting).*

The Government has also asserted that it must protect the

interests of nongambling States in discouraging gambling

activities by their citizens. Such an interest in imposing the

public policy of some States onto others stands in sharp

contrast to the “federalism” interest the Government previ-

ously asserted to justify the same statute.’ See United States v.

authorized in an increasing number of States. See Lotteries, Staff Report of

National Gambling Impact Study Commission, available at <hitp://

www.ngisc. gov/research/lotteries.html.>

? See 25 U.S.C. § 2701 et seq. As of December 31, 1996, 184 Indian

Tribal Governments operated casinos and other forms of gambling in 24

States. Native American Gaming, Staff Report of National Gambling

Impact Study Commission, available at <hup://www.ngisc.gov/research/

nagaming html.>

8 The majority in Posadas accepted Puerto Rico's asserted interest in

discouraging its residents from engaging in casino gambling as substantial,

but the Court has since disavowed reliance on deference to such

unsupported legislative determinations. See 44 Liquormart, 116 S. Ct. at

1511 (Stevens, J., plurality op.) (“on reflection, we are now persuaded that

Posadas erroneously performed the First Amendment analysis”), id. at

1522 (O'Connor, J., concurring) (“[s)ince Posadas, . . . this Court has

examined more searchingly the State's professed goal, and the speech

restriction put into place to further it, before accepting a State's claim that

the speech restriction satisfies First Amendment scrutiny.”).

* Viewed somewhat differently, the statutory ban on private casino

advertising may operate to the benefit of States and Indian Tribal

Edge Broadcasting Co., 509 U.S. 418, 423 (1993) (govern-

ment asserted that the statute was intended ” ‘to accommodate

the operation of legally authorized State-run lotteries consis-

tent with continued Federal protection to the policies of non-

lottery States’ ") (quoting S. Rep. No. 93-1404 at 2 (1974)).

The statutory scheme, moreover, flatly contradicts the Gov-

ernment’s asserted solicitude for nongambling States. The

Federal Government has compelled al/ States to accept Indian

Tribal gaming, and that gaming, including Indian Tribal

casino gambling, may be freely advertised. See 25 U.S.C.

§ 2710; 47 C.FR. § 73.1211(c)(3) (excluding Indian Tribal

gaming from broadcast advertising ban). The Government

cannot credibly claim an interest in protecting States from

public participation in gambling activities while simul-

taneously imposing those very activities on the States.

The Government asserted a third interest at the eleventh

hour of this litigation in protecting compulsive gamblers, an

interest even the Fifth Circuit majority found to be unsup-

ported and posited too late for judicial consideration. 149

F.3d at 338-39. The Government obviously is attempting to

take advantage of scattered lower court decisions evading this

Court's requirements by turning away from the First Amend-

ment on this issue and focusing instead on the impact of

commercial speech on what are claimed to be the most vul-

nerable potential recipients.'° Government, according to these

Governments that sponsor (and may purchase broadcast advertising to

promote) their own gambling activities by precluding their private

competitors from advertising on radio and television. The Federal

Government has no legitimate interest in favoring State and Indian Tribal

Governments over private individuals as sponsors of commercial speech,

but in any event the Government has failed to assert any federalism interest

that would justify the ban on private casino advertising.

1 See, e.g., Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 328-29

(4th Cir. 1996) (reaffirming on remand a Baltimore ban on billboard

advertising of alcohol beverages because the city “attempts to protect its

children in a manner and with a motive distinct from those evidenced by

Rhode Island in 44 Liquormart and in accord with an unbroken chain of

Supreme Court cases which indicate its desire to ensure that children do not

courts, may restrict commercial speech as long as it asserts an

interest in protecting an “eggshell ear” audience, particularly

children. The Fifth Circuit majority, while expressly rejecting

the Government's “assertions concerning compulsive gam-

bling, intuitively sensible though some of them are,” id. at

338, nevertheless concluded that if the statutory ban were not

upheld, “communities will be less capable of insulating them-

selves and their children from the deleterious influence of

gambling” and that “[djoctrinal rigidity” would preclude

“peoples’ right to make choices to protect their community

and their children.” Id. at 341 (emphasis added).

States unquestionably have an interest in protecting chil-

dren and preventing abuse of many otherwise lawful products

and services, but this Court has never sanctioned “lowest

common denominator” protection for speech, much less

authorized lower courts to fabricate such a justification for

speech restrictions out of whole cloth. To the contrary, the

Court has consistently concluded that the Constitution does

not permit the Government to tailor speech intended for the

general public to the needs or tastes of a fragile few. See, e.g.,

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73 (1983)

(“the government may not ‘reduce the adult population . . . to

reading only what is fit for children’ ™) (quoting Butler v.

Michigan, 352 U.S. 380, 383 (1957)). Nor may the Govern-

ment avoid strict application of First Amendment principles

to protect the interests of persons who are allegedly more

susceptible to misuse of the advertised product or service.

See, e.g., Reno v. ACLU, 521 U.S. 844 (1997) (holding that

Government may not bar adults from receiving “indecent” but

constitutionally protected speech in an asserted effort to pro-

tect children).

Courts too often gloss over the “substantial interest”

requirement of this Court's commercial speech analysis — or

become lost in the marketplace of ideas”), cert. denied, 117 S. Ct. 1569

(1997); Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87

(2d Cir. 1998) (finding government bad substantial interest in protecting

children from profane advertising); Lindsey v. Tacoma-Pierce County

Health Dept., 8 F. Supp. 2d 1225 (W.D. Wash. 1998).

worse, use an asserted interest in (or the court's own supposi-

tion of) protecting vulnerable potential recipients to trump the

remaining Central Hudson inquiry. The Court should once

again reaffirm that Government or judicial solicitude for the

highly susceptible cannot substitute for a genuine and legiti-

mate governmental interest and proof that the harms any

commercial speech purports to remedy or prevent are real.

Ill. THE GOVERNMENT HAS NOT SATISFIED AND

CANNOT SATISFY ITS BURDEN TO PROVE THE

CONSTITUTIONAL PERMISSIBILITY OF ITS

ADVERTISING BAN.

The Government must prove not only that a substantial

government interest underlies its ban on private casino adver-

tising but that the ban directly and materially advances, and is

narrowly tailored to further, that interest. The Government

has not satisfied and cannot satisfy its burden of proof.

Indeed, the Government failed even to present evidence on

these issues. The Fifth Circuit’s decisions upholding the

advertising ban disregarded this Court's rejection of legisla-

tive deference, and conclusively presumed that the advertis-

ing ban directly and materially advanced, and “reasonably

fit,” the Government's goal of reducing public participation in

gambling activities. The Court, therefore, should unam-

biguously require that governmental entities prove, through

evidence presented and weighed in a court of law, that any

restrictions on commercial speech directly advance a legiti-

mate and substantial governmental interest to a material

degree and that the restrictions are narrowly tailored to fur-

ther that interest in light of available alternatives that do not

impact speech.

A. The Government Must Prove That Its Advertis-

ing Ban Directly and Materially Advances a

Substantial Interest and Cannot Rely on Pre-

sumptions to Satisfy Its Burden of Proof.

The Court has made it abundantly clear with respect to

the third Central Hudson factor that the State bears the

burden to prove — through evidence, as opposed to presump-

tions, speculation, or conjecture — that any restrictions on

commercial speech directly advance a substantial govern-

mental interest in a material way.

[T]he Government carries the burden of showing

that the challenged regulation advances the Govern-

ment’s interest “in a direct and material way.” That

burden “is not satisfied by mere speculation and

conjecture; rather a governmental body seeking to

sustain a restriction on commercial speech must

demonstrate that the harms it recites are real and

that its restriction will in fact alleviate them to a

material degree.”

Rubin v. Coors Brewing, 514 U.S. at 487 (quoting Edenfield,

507 U.S. at 770-71); accord Ibanez v. Florida Dept. of Busi-

ness and Professional Regulation, 512 U.S. 136, 143 (1994).

“Without this requirement, a State could with ease restrict

commercial speech in the service of other objectives that

could not themselves justify a burden on commercial expres-

sion.” Edenfield, 507 U.S. at 771; Rubin, 514 U.S. at 487;

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994).

Despite this Court's repeated admonition to hold the

Government to its burden of proof, the Fifth Circuit majority

found that the Government satisfied the third Central Hudson

factor entirely on the basis of presumptions, without any

evidentiary showing that the advertising ban directly and

materially advanced the Government's asserted interests. The

majority initially concluded, “It is axiomatic that the purpose

and effect of advertising is to increase consumer demand. As

noted in both Posadas and Edge, the vigor with which the

statute has been challenged confirms the efficacy of the prohi-

bition.” 69 F.3d at 1301. On remand for reconsideration in

light of 44 Liquormart and the Court's abandonment of the

constitutional analysis in Posadas, the majority continued to

adhere to this view “for the reasons stated in our previous

opinion.” 149 F.3d at 338.'' Rather than requiring proof

through evidence, the Fifth Circuit simply adopted the con-

clusive presumptions that advertising always increases con-

sumption and that by challenging an advertising ban,

plaintiffs concede that it advances a governmental interest in

reducing consumption. Such presumptions are antithetical to

this Court’s commercial speech jurisprudence and would evis-

cerate protection for such speech.

The genesis of these presumptions is in Central Hudson

itself, in which the Court found “an immediate connection

between advertising and demand for electricity. Central Hud-

son would not contest the advertising ban unless it believed

that promotion would increase its sales. Thus, we find a direct

link between the state interest in conservation and the Com-

mission’s order.” 447 U.S. at 569. Central Hudson, however,

was a monopoly provider of electricity seeking to engage in

promotional advertising, i.e., “advertising intended to stimu-

late the purchase of utility services.” /d. at 559. By definition

there was a plausible connection between such advertising

and the consumption of electricity: Only one source existed

for such electricity, and thus any increase in Central Hudson's

sales necessarily would increase overall consumption.

This case-specific concept, however, lost its moorings in

Posadas, in which the Court deferred to an unstated and

unsupported legislative belief that

'! The majority also reiterated its beliefs that “the broadcast

advertising ban in § 1304 directly advances the government's policies must

be evident from the casinos’ vigorous pursuit of litigation to overturn it,”

id., and “regulation of promotional advertising directly influences

consumer demand, as compared with the indirect market effect criticized in

44 Liquormart.” Id. at 340.

advertising of casino gambling aimed at the resi-

dents of Puerto Rico would serve to increase the

demand for the product advertised. We think the

legislature’s belief is a reasonable one, and the fact

that appellant has chosen to litigate this case all the

way to this Court indicates that appellant shares the

legislature's view.

478 U.S. at 342 (citing Central Hudson, 447 U.S. at 569);

accord Edge Broadcasting, 509 U.S. at 434. Suddenly and

without analysis, the link between advertising and overall

consumption in a monopoly market became applicable to

advertising in a competitive market, and a litigant’s right to

advertise in order to preserve or increase its market share was

equated to a desire to increase consumption in the market as a

whole. Moreover, it was regarded, without proof, as always

producing that effect.

Such an assumption ignores the realities of the commer-

cial marketplace, where advertising serves a multitude of

purposes and market participants often will advertise their

products or services to obtain business at the expense of

competitors, not necessarily to stimulate any additional con-

sumer demand.'? Nor does any association between advertis-

ing and consumption, even if proven, establish that the harms

the Government must prove will necessarily diminish as a

direct result of a decrease in commercial speech. Here, for

example, a proper application of the Central Hudson test

requires the Government to prove not just that a ban on

'2 For example, advertising in support of political candidates

(although “political,” as opposed to “commercial” speech) has steadily

increased, yet voter turn-out continues to decline. See, e.g., Will Lester,

Associated Press, Nationwide Voter Turnout in ‘98 Election Was Lowest in

54 Years, The Seattle Times, Feb. 10, 1999 (observing that turnout was low

in several notably expensive races). Politicians and their supporters

nevertheless continue to spend significant sums on advertising — and to

fight vigorously for the right to do so — even though such advertising does

not result in greater overall voter participation because the objective is to

obtain more votes for them than for their opponents.

————— ——

advertising private casinos reduces public participation in

gambling activities but that this reduction, in turn, substan-

tially remedies any social ills that the Government proves are

directly tied to such public participation.

The Court in its most recent opinions has begun to

recognize these realities and, in addition to disowning the

legislative deference accepted in Posadas and Edge Broad-

casting, has required proof of any asserted connection

between advertising, consumption, and the Government-

asserted harms. See 44 Liquormart, 517 U.S. at 505-06

(Stevens, J., plurality op.) (concluding that while a ban on

price advertising for alcohol beverages “may have some

impact on the purchasing patterns of temperate drinkers of

modest means, the State has presented no evidence to suggest

that its speech prohibition will significantly reduce market-

wide consumption”); Rubin, 514 U.S. at 487-88 (the “ ‘com-

mon sense’ ” idea that “a restriction on the advertising of a

product characteristic will decrease the extent to which con-

sumers will select a product on the basis of that trait” held

insufficient to prove direct and material advancement of the

asserted Government interest).

While this Court has thus cabined Posadas and Edge

Broadcasting, the Fifth Circuit and many other courts have

continued to accept presumptions that preclude compilation

and judicial review of the evidentiary record this Court has

demanded.'3 The Government in this case introduced no evi-

dence to demonstrate that banning advertising would have any

impact on public participation in gambling activities, yet the

Fifth Circuit majority conclusively presumed such an impact.

Such a presumption flies in the face of this Court’s recent

13 See, e.g., Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305 (4th Cir.

1995), vacated and remanded, 116 S. Ct. 1821 (1996), reaff’d, 101 F.3d

325 (4th Cir. 1996) (concluding no judicial factual findings are required on

any aspect of Central Hudson test, and that courts may uphold restrictions

on commercial speech based solely on presumptions and materials

gathered during legislative process), cert. denied, 117 S. Ct. 1569 (1997).

commercial speech decisions, which have flatly rejected leg-

islative deference, necessarily precluding indirect deference

to legislative judgments through the improper use of conclu-

sive presumptions.'4 Practically speaking, judicial invocation

of such presumptions eliminates the third Central Hudson

factor altogether because the fact that anyone challenged a

restriction on commercial speech would conclusively demon-

Strate that the restriction 1s effective. Acceptance of the Fifth

Circuit majority's analysis would allow the Government to

merely posit an evil and then regulate advertising by presum-

ing that the offending conduct is thereby promoted. Having

overruled Posadas in Rubin and 44 Liquormart, the Court

should not allow the lower courts and Government to resur-

rect it in this fashion. The Court, therefore, should use this

opportunity to reaffirm, specifically and expressly, that the

Government may not rely on presumptions but must prove, by

evidence presented and weighed in a court of law, that its

commercial speech restriction directly advances a substantial

interest in a material way.

The Government has not made the requisite showing

here, nor could it, in light of the numerous statutory excep-

tions to its advertising ban. The statute bans advertising of

'* The Fifth Circuit opinion and similar decisions even exceed the

bounds of evidentiary presumptions. Such presumptions allocate the

burden of producing evidence among the parties and are not themselves

evidence of a disputed fact. See, ¢.g., Panduit Corp. v. All States Plastic

Mfg. Co., 744 F2d 1564, 1581 (Fed. Cir. 1984) (“Presumptions of

fact. . . arise out of considerations of fairness, public policy, and

probability, and are useful devices for allocating the burden of production

of evidence Letween the parties.”). Contrary to the abuse of this concept by

some courts, a proper evidentiary presumption, without more, cannot

establish a disputed issue of fact. Even proper application of this principle,

however, is inappropriate in the context of the First Amendment. A

presumption that requires those who challenge restrictions on commercial

speech to first produce evidence of the restriction’s ineffectiveness would

turn on its head the Court's requirement that the government must bear the

burden to prove the permissibility of its commercial speech restrictions.

private casino gambling while permitting such advertising for

casino and other gambling activities on Indian reservations,

State-sponsored lotteries, and other gaming. 18 U.S.C.

§§ 1301-08; 47 C.F.R. § 73.1211. The Government produced

no evidence to demonstrate that “compulsive gambling” or

other alleged social ills are associated with commercial

casinos any more than with Indian, State, or other private

gaming operations. Yet, the Government compels States to

accommodate Indian Tribal gaming and allows those Tribes,

as well as States that sponsor lotteries, to advertise freely.

Neither evidence nor logic supports the Government’s posi-

tion that a ban on advertising private casinos will have any

impact whatsoever on public participation in gambling activ-

ities under these circumstances.

This Court recently concluded in the context of a similar

statutory scheme that “([t]here is little chance that [a regula-

tion] can directly and materially advance its aim, while other

provisions of the same act directly undermine and counteract

its effects.” Rubin v. Coors Brewing, 514 U.S. at 489. The

Government's inconsistent ban on gambling advertising,

therefore, cannot directly and materially advance any legiti-

mate governmental interest. See Valley Broadcasting Co. v.

United States, 107 F.3d 1328, 1336 (9th Cir. 1997), cert.

denied, 118 S. Ct. 1050 (1998); Players Int'l, Inc. v. United

States, 988 F. Supp. 497, 506-07 (D.N.J. 1997), cert. denied,

_. S. Ct. __, 1999 WL 8447 (Jan. 11, 1999) (No. 98-721)

(Third Circuit appeal pending). Accordingly, the Court should

reverse the Fifth Circuit’s decision and strike down the ban on

advertising by private casinos as fatally inconsistent with the

First Amendment.

B. The Government Cannot Prove the Challenged

Restriction Is Narrowly Tailored to Advance Its

Substantial Interest, and May Not Selectively

Ban Forms of Commercial Speech to Accomplish

Its Asserted Goals.

The fourth Central Hudson factor requires that the Gov-

ernment prove that its restriction on speech is no more exten-

sive than necessary to serve its asserted substantial interest.

E.g., Rubin v. Coors Brewing, 514 U.S. at 490-91. The Court

reaffirmed in 44 Liquormart that the Government must be put

to its proof to demonstrate narrow tailoring between its means

and its ends. As Justice O'Connor stated in that case on behalf

of four Justices,

While the State need not employ the least restrictive

means to accomplish its goal, the fit between means

and end must be “narrowly tailored.” The scope of

the restriction on speech must be reasonably, though

it need not be perfectly, targeted to address the

harm intended to be regulated. The State's regula-

tion must indicate a “carefu[l] calculat{ion of] the

costs and benefits associated with the burden on

speech imposed by its prohibition.” The availability

of less burdensome alternatives to reach the stated

goal signals that the fit between the legislature's

ends and the means chosen to accomplish those

ends may be too imprecise to withstand First

Amendment scrutiny.

517 U.S. at 529 (citations omitted); see id. at 508-11

(Stevens, J., plurality op.); Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 416-17 (1993); Board of Trustees of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

The Fifth Circuit majority purported to recognize that in

the wake of 44 Liquormart, the fourth Central Hudson factor

“has become a tougher standard for the state to satisfy.” 149

F.3d at 338. It failed, however, to apply this “tougher stan-

dard” in any meaningful way. Instead, the lower court major-

ity attempted to make a constitutional silk purse out of a

sow's ear, citing the gambling advertising ban’s fragmented

statutory scheme as evidence of a “reasonable fit”:

The federal government's policy toward legalized

gambling is consciously ambivalent. What began as

a prohibition on all interstate lottery advertising has

been successively, but gingerly modified to respect

varying state policies and the federal government's

encouragement of Indian commercial gambling. The

remaining advertising limits reflect congressional

recognition that gambling has historically been con-

sidered a vice; that it may be an addictive activity;

that the consequences of compulsive gambling

addiction affect children, the family, and society;

and that organized crime is often involved in legal-

ized gambling.

Id. at 339 (footnotes omitted). No longer able to rely

expressly on Posadas, the majority then turned to Edge

Broadcasting to reaffirm its prior decision, drawing the

“inference” from the Court's opinion in that case that “if the

federal government may pursue a cautious policy toward the

promotion of commercial gambling, then it may use one

means at its disposal — a restriction on broadcast advertising —

to control demand for the activity.” /d. at 340 (footnote

omitted).

Nothing in this Court's opinion in Edge Broadcasting

supports the Fifth Circuit's “inference” that the Government

may selectively ban commercial speech sponsored by private

casinos while permitting the same commercial speech spon-

sored by Indian Tribal casinos and State-sponsored lotteries.

The Court in Edge Broadcasting held only that a restriction

on lottery advertising by broadcasters located in nonlottery

States “reasonably fit” the Government’s interest in both

respecting the policy of such States and accommodating the

interests of lottery States, even in circumstances in which the

bulk of the broadcaster's audience is in a lottery State.'* 509

'S Though Amici believe Edge Broadcasting was wrongly decided

and that an express repudiation of its analysis would help guide lower

U.S. at 429-30. Indeed, apart from that bare conclusion, the

Court in Edge Broadcasting engaged in no analysis of the

fourth Central Hudson factor, and instead focused entirely on

the third factor of direct advancement. See id. (restating its

fourth factor conclusion that “applying the restriction to a

broadcaster such as Edge directly advances the governmental

interest’).

This Court now requires a “closer look,” 44 Liguormart,

517 U.S. at 530 (O'Connor, J., concurring), than the analysis

in which it engaged in Edge Broadcasting. The Court has

disowned the deference to the “incremental” or selective

advancement of governmental objectives through speech

restrictions on which it relied in both Posadas and Edge

Broadcasting. As Justice Stevens explained,

Given our longstanding hostility to commercial

speech regulation of this type, Posadas clearly erred

in concluding that it was “up to the legislature” to

choose suppression over a less speech-restrictive

policy. The Posadas majority's conclusion on that

point cannot be reconciled with the unbroken line of

prior cases striking down similarly broad regula-

tions on truthful, nonmisleading advertising when

non-speech-related alternatives were available.

44 Liquormart, 517 U.S. at 509-10 (Stevens, J., plurality op.);

accord id. at 1522 (O'Connor, J., concurring). Although spec-

ific to Posadas, the Justices’ rejection of that line of reason-

ing also should preclude any reliance on Edge Broadcasting

courts in properly evaluating commercial speech restrictions in the future,

this Court certainly could reverse the Fifth Circuit in this case without

overruling Edge Broadcasting. As Justice Stevens, writing for four

Justices, recognized in 44 Liquormart, the holding in Edge Broadcasting

affected only “advertising about an activity that had been deemed illegal in

the jurisdiction in which the broadcaster was located.” 517 U.S. at 509

(emphasis added). This case is distinguishable: The issue is whether

broadcasters may advertise an activity that is /egal in the jurisdiction where

they are located.

—

for the discredited proposition that courts may defer to Con-

gressional judgments on how best to accomplish govern-

mental ends, rather than insisting that the Government prove

that no reasonable non-speech related alternatives exist to

banning speech. Here, on the other hand, the Government

chose speech restrictions as its first, and only, regulatory

alternative.

The Fifth Circuit majority also refused to consider the

“availability of less burdensome alternatives to reach the

stated goal,” which the Court has reaffirmed is a critical

aspect of the Central Hudson analysis. 44 Liquormart, 517

U.S. at 529 (O'Connor, J., concurring); id. at 508-11

(Stevens, J., plurality op.). The lower court concluded that

“the efficacy of non-advertising-related means of discourag-

ing casino gambling is purely hypothetical, as such measures

would have to compete with the message of social approba-

tion that would simultaneously be conveyed by unbridled

broadcast advertising.” 149 F.3d at 340. The Fifth Circuit thus

not only relieved the Government entirely of its burden to

prove that a ban on speech is narrowly tailored to its asserted

interests, but dismissed out of hand even the possibility that

alternatives might be effective, on the very strange hypothesis

that by not banning advertising sponsored by the private

casino owners, the Government would be perceived as

endorsing it. Such a concept is nothing less than extraordinary

and would eviscerate the fourth Central Hudson factor for

commercial speech about any activity the Government does

not favor.

Congress has obvious other methods at its disposal that

would more directly accomplish an interest in reducing

demand for gambling activities in States where all such activ-

ities are illegal. Most obviously, the Government could spon-

sor its own speech to warn or educate the public on the social

ills the Government believes arise from excessive gambling.

Congress also could provide funding for State efforts to

enforce non-speech-related regulations on gambling activities

and the alleged social harms associated with such activities,

as well as enact and enforce its own regulations consistent

with its Commerce Clause authority. Indeed, Congress has

established a commission to study and recommend just such

alternatives. See National Gambling Impact Study Commis-

sion Act, Pub. L. No. 104-169 (1996). “The ready availability

of such alternatives . . . demonstrates that the fit between ends

and means is not narrowly tailored.” 44 Liquormart, 116

S. Ct. at 1522 (O'Connor, J., concurring).'®

Finally, the Fifth Circuit majority vainly attempts to

distinguish the analysis in 44 Liquormart by stating that the

government's restriction on gambling advertising, unlike the

alcohol beverage price restriction at issue in 44 Liguormart,

is not a “blanket ban on advertising” and thus is “more

analogous to a time, place and manner restriction. Other

media remain available, such as newspapers, magazines and

billboards, and indeed broadcast advertising of casinos, with-

out reference to gambling, is permitted.” 149 F.3d at 340. The

Fifth Circuit majority mischaracterizes the plain language of

the statute, which effectively bans ail private casino gambling

advertising in any medium, including “[a]ny newspaper, cir-

cular, pamphlet, or publication of any kind.” 18 U.S.C.

§ 1302. More fundamentally, this Court has flatly rejected the

Fifth Circuit majority's rationale, which is irreconcilable with

both the Court's commercial speech jurisprudence and the

constitutional analysis of time, place, and manner restrictions

on other forms of protected speech.

“[T]he essence of time, place, or manner restrictions lies

in the recognition that various methods of speech, regardless

of their content, may frustrate legitimate governmental goals.

No matter what its message, a roving sound truck that blares

506-07 (D.N.J. 1997), cert. denied, _ §. Ct. ___, 1999 WL 8447 (Jan. 11,

1999) (No. 98-721) (Third Circuit appeal pending). See also Rubin v.

Coors Brewing Co., 514 U.S. 476, 491 (1995) (availability of options

indicates restriction is more extensive than necessary); Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 417-18 (failure to consider

alternative methods of furthering interests shows government did not

“carefully calculate” burden on speech, and is evidence the “fit” between

ends and means is not reasonable) (1993); Board of Trustees of State Univ.

of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

at 2 a.m. disturbs neighborhood tranquility.” Consolidated

Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536 (1980)

(emphasis added). Such restrictions thus must be content

neutral, i.e., “not based upon either the content or subject

matter” of the regulated speech. /d. Restrictions on commer-

cial speech, in sharp contrast, are by definition government

regulation based on the content and subject matter of the

speech. The Court, therefore, has consistently refused to

uphold bans ov commercial speech as reasonable time, place,

and manner restrictions. In Discovery Network, the Court

struck down a city ban on newsracks containing commercial

publications despite the Government's claim that its interest

in safety and esthetics was unrelated to the content of the

publications and the publishers had alternative means of dis-

tributing their publications.

The argument is unpersuasive because the very

basis for the regulation is the difference between

ordinary newspapers and commercial speech. . . .

Under the city’s newsrack policy, whether any par-

ticular newsrack falls within the ban is determined

by the content of the publication resting inside the

newsrack. Thus, by any commonsense understand-

ing of the term, the ban in this case is “content

based.”

507 U.S. at 429. The Court concluded that the ban was neither

content neutral nor narrowly tailored, and “[t}hus, regardless

of whether or not it leaves open ample alternative channels of

communication, it cannot be justified as a legitimate time,

place, or manner restriction on protected speech.” /d. at 430;

accord Edenfield, 507 U.S. at 773; Virginia Pharmacy, 425

U.S. at 771. Furthermore, even if the ban on gambling adver-

tising left open reasonable alternative media for expression

(which it does not), a restriction on the time, place or manner -

of speech cannot be justified merely because the Government

has not foreclosed all avenues of speech. See, e.g., Schneider

v. State of New Jersey, 308 U.S. 147, 163 (1939) (“[O]ne is

not to have the exercise of his liberty of expression in appro-

priate places abridged on the plea that it may be exercised in

some other place.”); accord Reno v. ACLU, 521 U.S. 844, 117

S. Ct. 2329, 2348-49 (1997).

The Government's advertising ban specifically targets

private casino advertising based on the content of that adver-

tising and is not narrowly tailored to the Government's

asserted interests in light of the ready availability of alterna-

tive means of pursuing the Government's asserted interests.

The Fifth Circuit majority cannot nullify the rigors of this

Court’s Central Hudson requirements by relying on rejected

and inapplicable doctrines or by deferring to legislative judg-

ments on how best to accomplish the Government's purported

ends. The federal advertising ban on private casino gambling,

therefore, cannot survive constitutional scrutiny under a

proper application of the Court’s Central Hudson test and

should be declared unconstitutional.

CONCLUSION

In 44 Liquormart, this Court made clear — albeit in four

separate opinions — that the full measure of First Amendment

protection afforded to commercial speech cannot be diluted

by evidentiary presumptions, by deference to unproven legis-

lative or judicial beliefs, or by unsubstantiated assertions that

censorship is necessary to protect a vulnerable audience. The

Court’s recent cases instruct that the Government is required

to prove — with hard evidence, not with slogans about the

alleged harm caused by advertising — that a speech restriction

directly and materially advances a substantial interest, and is

narrowly tailored to serve that interest. The Fifth Circuit

failed to put the Government to its proof, upholding a com-

plete ban on advertising about a lawful activity using an

analysis that mimics Posadas and other discredited

approaches to commercial speech. The Fifth Circuit also

ignored the internal inconsistencies of the statutory scheme at

issue here — inconsistencies which would be fatal to the

Government's effort to justify the advertising ban even if it

had some evidence to support its assertions that the ban in

fact directly advanced some substantial interest. The opinion

below, and other similar opinions cited in this brief, show that

lower courts have resisted protecting commercial speech from

Government interference to the full extent required by this

Court. Amici respectfully request that this Court reverse the

judgment below, and do so in a manner that unequivocally

instructs the lower courts on the stringent First Amendment

standard that must be applied to commercial speech restric-

tions.

Respectfully submitted,

P. Cameron DeVore*

Grecory J. Kopta

Eric M. STAHL

Davis Wricut Tremaine LLP

2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101-1688

(206) 622-3150

Counsel for Amici Curiae

*Counsel of Record

Of Counsel:

Henry L. BAUMANN

Jack N. GoopMan

Steven A. BooksHESTER

NATIONAL ASSOCIATION OF

BROADCASTERS

1771 N Street, N.W.

WAshington, DC 20036-2891

Counsel for National

Association of Broadcasters

Joun F. Kamp

AMERICAN ASSOCIATION OF

ADVERTISING AGENCIES

1899 L Street, N.W.

Washington, DC 20036

Counsel for American Association

Of Advertising Agencies

Steven R. SHapiro

AMERICAN Civic. Liperties

Unton FounbDaTIon

125 Broad Street

New York, New York 10004

Counsel for American Civil

Liberties Union

Laurence H. Winer

Arizona Stare Universrry ScHoo: or Law

Orange and Mcallister Streets

Tempe, Arizona 85287

Counsel for The Media Institute

Anne Nose Ervine

MacGazine PusuisHers or America, INc.

1211 Connecticut Avenue, N.W.,

Suite 610

Washington, DC. 20036

Counsel for Magazine

Publishers of America, Inc.

Jerry S. Birenz

Stave R. Mercacr

c/o MaGazine PusiisHers or America, INc.

9°9 Third Avenue

New York, New York 10022

Counsel for Magazine

Publishers of America, Inc.

Xenia M. Boone

NationaAL NewspaPerR ASSOCIATION

1010 N. Glebe Road, Suite 450

Arlington, Virginia 22202

Counsel for National Newspaper

Association

Davip S. J. Brown

René P. Micam

Newsparper ASSOCIATION OF AMERICA

1921 Gallows Road, Suite 600

Vienna, Virginia 22182-3900

Counsel for Newspaper Association

of America

Eric Rusin

Rusin, Winston, Diercks,

Harris & Cooke

1333 New Hampshire

Avenue, N.W.

Washington, DC 20036

Counsel for Outdoor

Advertising Association

of America, Inc.

APPENDIX

IDENTITY OF INDIVIDUAL AMICI CURIAE

American Association of Advertising Agencies

(“AAAA”), founded in 1917, is the trade association for

the advertising agency business. Its membership is com-

prised of over 550 advertising and communications agen-

cies with over 1300 offices throughout the United States.

AAAA members create and place over 75 percent of all

national advertising and the majority of local and

regional advertising in all 50 states. More than 150 AAAA

members have clients in the gaming and related indus-

tries, with accounts representing state lotteries, pari-

mutual betting, casinos, and Native American gaming

activities. AAAA is dedicated to advancing the interests

of the advertising industry and has actively represented

its members in connection with all efforts to restrict com-

mercial speech.

American Civil Liberties Union (“ACLU”) is a nation-

wide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. Since its

founding in 1920, the ACLU has vigorously defended the

free speech principles of the First Amendment and has

appeared before this Court on numerous occasions, both

as direct counsel and as amicus curiae, in cases challeng-

ing governmental actions that threaten First Amendment

rights. The ACLU and its members have a vital interest in

the outcome of this case because it raises fundamental

questions about whether, and to what extent, the First

Amendment permits government to suppress truthful

and non-misleading information about lawful products

and services.

Magazine Publishers of America, Inc. (“MPA”) is a

national trade association including in its present mem-

bership approximately 200 domestic magazine publishers

who publish over 1,200 magazines sold at newsstands

and by subscription. MPA members provide broad cover-

age of domestic and international news in weekly and

biweekly publications, and publish weekly, biweekly and

monthly publications covering consumer affairs, law, lit-

erature, religion, political affairs, science, sports, agricul-

ture, industry and many other interests, avocations and

pastimes of the American people. MPA has a long and

distinguished record of activity in defense of the First

Amendment right to engage in truthful commercial

speech about lawful products and services.

The Media Institute (the “Institute”) is an indepen-

dent, nonprofit research organization that advocates a

strong First Amendment and full constitutional protec-

tion for commercial speech. The Institute has participated

in select cases in federal district and circuit courts and the

U.S. Supreme Court. The Institute also conducts research

and produces publications relating to the First Amend-

ment and other aspects of communications policy, includ-

ing the annual The First Amendment and the Media and the

quarterly Commercial Speech Digest.

National Association of Broadcasters (“NAB”), orga-

nized in 1922, is a non-profit incorporated trade organiza-

tion that serves and represents radio and television

stations and networks. NAB’s members cover, produce,

and broadcast the news and other programming to the

American people. NAB seeks to preserve and enhance its

members’ ability to freely disseminate information con-

cerning commercial activities, the activities of govern-

ment and other matters of public interest and concern.

National Newspaper Association (“NNA”), established

in 1885, is a not-for-profit trade association representing

the owners, publishers and editors of America’s commu-

nity newspapers. NNA’s mission is to protect, promote

and enhance America’s community newspapers. Today,

NNA’s 4,000 members make it the largest newspaper

association in the United States. NNA works closely with

policy officials to create a legal and regulatory environ-

ment conducive to the growth of community newspapers,

including full First Amendment protection for non-

misleading, truthful advertising of products and services.

Newspaper Association of America (“NAA”) is a non-

profit organization representing the interests of more

than 1,700 newspapers in the United States and Canada.

Most NAA members are daily newspapers, accounting

for approximately 87 percent of the U.S. daily newspaper

circulation. One of NAA’s key strategic priorities is to

advance newspapers’ interests in First Amendment

issues, including the ability to publish information about

lawful products and services.

Outdoor Advertising Association of America, Inc.

(“OAAA”), founded in 1881, is the principal trade asso-

ciation for the outdoor advertising industry. The outdoor

advertising industry has disseminated advertisements

that are the subject of this lawsuit, and anticipates doing

so in the future. OAAA’s 800 members consist of domes-

tic and international outdoor and out-of-home operators,

suppliers and advertisers.

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.