# Amicus Curiae Brief — Greater New Orleans Broadcasting Assn., Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0226%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 173 ## Text (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. S 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. : : h 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 10 15 16 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 iv 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 ............... 12 Native American Gaming, Staff Report of National Gambling Impact Study Commission, available at ..... .. 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 l 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, 2 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. 3 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 ? 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 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 13 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 14 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). 15 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. 16 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 17 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. 18 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. ————— —— 19 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). 20 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. 21 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. 22 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 23 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 24 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. — 25 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 26 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 '© Accord Players Int'l, Inc. v. United States, 988 F. Supp. 497, 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). 27 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). 28 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 29 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 30 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. la 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 2a 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 3a 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 4a so in the future. OAAA’s 800 members consist of domes- tic and international outdoor and out-of-home operators, suppliers and advertisers. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0226%3A13. Public record. Not legal advice.