# Opposition Brief — Greater New Orleans Broadcasting Ass'n v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1306%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 519 U.S. 801 ## Text FILED JUN 20 1996 OFFICE OF {HE CLERK ee No. 95-1708 $n the Supreme Court of the Ginited States OT ro ‘ER TERM, 1995 GREATER NEW ORLEANS BR UNITED STA F AMI A FEDERAL COMMUNICATIONS C¢ ON PETIT] \ f j { fl I THI \/ »N7 y, } ; i} ; Drew S. Days, II ~ - \A HUN i fant Aft AN ea SCO R. Mi \/f/ \\ an QUESTION PRESENTED Whether 18 U.S.C. 1304, which prohibits the broad- casting of advertisements for “any lottery, gift enter- prise, or similar scheme,” violates the First Amend- ment as applied to broadcast advertisements for legal casino gambling. (1) TABLE OF CONTENTS Page IA Ee ON eT 5 AE RN TOE ] SE TTITIIIINN ccs rataiieldatchsasibonenpebniigiensiventtbananhanasindianitunrss ] Statement ......... iipeusiulenbogtebaneeniicetnssaneintetheeendesenakbestbereonsin 2 iia a 2 cs cnisepuaeuebbaiebaented 7 IIIT sihbsetcitianiadetsinnbiaisgminbniinbtameanmbbiaveitanmlonsedapions 10 TABLE OF AUTHORITIES Cases: Anheuser-Busch, Inc. v. Schmoke, No, 95-685 (May iat EN teabactabetlbebuiidgbedianeedndabsnesbursevvadasapainogeabbennees 9 Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) ............ eee 5 FCC vy. American Broadcasting Co., 347 U.S, 284 CREPE sadancsveretnnsesvacesevwsiecucwgnstutoserseserneeppmesteseouetornecs 3 44 Liquormart, Inc. v. Rhode Island, 116 8. Ct. DP TIIDEEED seinantendidupsteclvessnaessdesbeasieistientedsians 7, 8, 9, 10 Hospitality Investments of Philadelphia, Inc. v. Pennsylunia State Police, No. 94-1247 (May 20, STE -selciethaclteseddineligisdbidinsietbnguletiniunectaiweitakéesintebgees 9 New York State Broadcasters Ass'n v. United States, 414 F.2d 990 (2d Cir. 1969), cert. denied, es RR Ea ee en ae 5 Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) ..........cccceeeeeeeees 6 United States v. Edge Broadcasting Co., 509 U.S. NUE a UIINTE Sitichncinddddidadduntediniaeubndddidiqndddeiebtoeddetevabneer’ 2,5 Statutes and regulations: Charity Games Advertising Clarification Act of 1988, Pub. L. No. 100-625, 102 Stat. 3205 .............cccccssoseees 4 I cecilia tneieiath 2 RR REESE SE aw As See kar, noe 2 SE NC REIRE SE aN SE poe sie ane aoe ORR 2 I IIIT Gi ocila nina aia Sie dodetaainhedanousinadostin 2, 3, 4, 5, 6, 7 RETR SRE RIS Sect Ae ae oe ee 4 (IIT) [V Statutes and regulations—Continued: > IEEE Wee a, Seaikbheuskscietesnbaenscl canigaad Some Ve ee snibeditiedinintieetndl bi ls Ey ERR Ror e en = See eee = 1307(d) FoF APA MIE. lniahiecabactictascheiisslabdde Sicaderaliimedan becemadiambel et SA: CIEE ak tankocdanteidcwemiia aie a 9) A PRE ee Cec RCM ey See USS Be 47 F’.R.: I 8 ERE SR eee See dikiduceaaaaies ’Gietata RINNE URGENT pls het it ene ING Miscellaneous: 134 Cong. Ree. (1988): pp. 12,278-12,280 pp. 12,278-12,282 lk ee ne OPP PPPS CSCC Cee ee eee ee ee ee ee eee ee ee pp. 12,280-12,282 ms) pp. 31,073-31,076 —_— — == Jn the Supreme Court of the Cnited States OcTOBER TERM, 1995 No. 95-1708 GREATER NEW ORLEANS BROADCASTING ASSOCIATION, INC., ET AL., PETITIONERS v. UNITED STATES OF AMERICA AND FEDERAL COMMUNICATIONS COMMISSION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE RESPONDENTS OPINIONS BELOW The opinion of the court of appeals (Pet. App. la- 18a) is reported at 69 F.3d 1296. The opinion of the district court (Pet. App. 19a-31la) is reported at 866 F. Supp. 975. JURISDICTION The judgment of the court of appeals was entered on November 30, 1995. A petition for rehearing was denied on January 23, 1996. The petition for a writ of certiorari was filed on April 22, 1996. The jurisdic- tion of this Court is invoked under 28 U.S.C. 1254(1). (1) STATEMENT 1. Section 1304 of Title 18 prohibits television and radio stations licensed by the Federal Communica- tions Commission (FCC) from broadcasting adver- tisements for “any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chanece.”' Section 1304 is part of a long- standing body of federal restrictions on interstate commerce involving lotteries and related gambling activities. 18 U.S.C. 1301-1307; 39 U.S.C. 3001, 3005; see generally United States v. Edge Broadcasting Co., 509 U.S. 418, 421-423 (1993) (discussing statutory history). Section 1304 was enacted in 1934 to com- plement existing restrictions on the distribution of lottery advertising and paraphernalia through the mails and other forms of interstate transportation. See 18 U.S.C. 1301 (interstate transportation), 1302 (mail); 89 U.S.C. 8001(a), 3005 (mail). Section 1304 is a criminal statute. The govern- ment’s practice, however, has not been to bring criminal prosecutions for violations of the statute. Instead, the advertising restriction has been enforced administratively by the FCC, which has adopted Section 1364 provides in pertinent part: Whoever broadcasts by means of any radio or television station for which a license is required by any law of the United States, * * * any advertisement of or infor- mation concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined under this title or imprisoned not more than one year, or both. a regulation subjecting broadcasters to the same restriction. See 47 C.F.R. 73.1211 (a).” By its terms, Section 1304 applies to broadcast ad- vertisements for any “lottery, gift enterprise, or similar scheme.” In FCC v. American Broadcasting Co., 347 U.S. 284 (1954), this Court construed that language to encompass any undertaking involving “(1) the distribution of prizes; (2) according to chance; (3) for a consideration.” Jd. 290. That formulation encompasses most if not all kinds of gambling ac- tivities that take place in casinos, and Section 1304 has therefore been understood to apply to advertising for casino gambling as well as “lotteries” in the more traditional sense.* In recent years, Congress has enacted several ex- ceptions to Section 1304. In 1976, Congress adopted a partial exemption for state lotteries, allowing the broadcasting of advertisements for state lotteries in States that conduct such lotteries. 18 U.S.C. 1307(a)(1). In 1988, Congress adopted exemptions for broadcast advertisements for Indian gambling, chari- table gambling, and government-conducted gambling Section 73.1211(a) provides in pertinent part: No licensee of an*AM, FM, or television broadcast station, except as in paragraph (c) of this section, shall broadcast any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise or scheme, whether said list contains any part or all of such prizes. * In the proceedings below, petitioners contended that Sec- tion 1304 does not apply to casino gambling. The district court and the court of appeals both rejected that statutory argument (Pet. App. 4a-5a, 23a-24a), and petitioners de not renew it here. other than state lottemes. is U.S.C. Lb07(ay2. A); 25 U.S.C. 2720. The FCC has made corresponding changes in its regulation, See 47C.F.R. T3121 he). However, Congress has specifically rejected propos ais to allow broadcast advertising for legal casino gambling. See 134 Cong. Ree. 12,278-12,282 (1938) (House); id. at 31,078-31,076 (Senate).” 2 Petitioners are New Orleans, Louisiana, tele vision and radio stations that desire to broadcast ads for Louisiana and Mississippi casino gambling. The) commenced this action in February 1994, contending that Section 1504, as applied to broadcast advertising for casino gambling in States where casino gambling is legal, violates the First Amendment. Pet. 8. (CConvre has also adopted eXCePLION for adverti ny related to promotional activities (e.g, an auto dealerships car raffle): certain fishing contests; and sporting event see Is 5.{ 1305. 1807(av2)(B), DBo7id) As originally proposed, the Charity Game \dvertising Clarification Act of 1988, Pub. L. No 100-625, 102 Stat. 5205 codified principally at 18 USC 1307), would have removed advertising restrictions on all lotteries allowed under state law, including commercial casino gambling See 134 Cong. Ree 1? PTS-12.280 (1988). The House of Representatives, however, adopted an amendment that specifically excluded casino gam bling from the bill, over the objection t repre entatives trom Nevada and New Jersey. /d. at 12,280-12,282, The Senate sub equel redrafted the bill t wcomplish the same result la at 31,078-31,076. In its report o» the bill, the Senate Judiciar ( ommittee empha ized that “ne provision of ithe billl is u tend ed to chanyve current law as it appl to the interstate advet I ne ot prol ional gambling iLIVilie li it 31,075. Pet ne} lo not claim that Ss ion 1304 interfere ' eporting or other non-commercial speech Alth Section 1304 refer to the broadcasting ol Lkavertise el i] ! rmati yyy nLEr the Federal Commu Petitioners’ challenge was based on the First Amendment principles recognized in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980), and its progeny. Central Hud- son subjects legislative restrictions on commercial speech to a four-part inquiry: (1) whether the speech concerns lawful activity and is not misleading, and (2) if so, whether the asserted governmental interest for the regulation is substantial; and if so, (3) whether the regulation “directly advances” the asserted inter- est and (4) whether it is no more extensive than Is necessary to serve that interest. Jd. at 566. In Kdge, supra, this Court applied that four-part test to the federal regulation of state lottery advertising; the Court upheld the scheme’s provisions whereby sta- tions in States that conduct lotteries may broadcast lottery advertisements, while stations in non-lottery States may not, 509 U.S. at 426-435. Petitioners and respondents filed cross-motions for summary judgment regarding the constitutionality of Section 1304. Relying on the principles articulated in Edge, supra, the district court entered summary judgment in favor of respondents. Pet. App. 19a-dla. 3. The court of appeals affirmed, Pet. App. la-1da. kor purposes of review under Central Hudson, the government advanced two distinct interests that are served by Section 1304. The first is an interest in as- sisting States that have chosen to prohibit casino gambling and other “lotteries” covered by Section 1304. The second is an independent federal interest in to “information” not to apply to non-commerca! sper ch ich as news reporting. See New York State Broadeca fe) A ['nited States, 414 F.2d 990, 993-994, 997 (2d Cir. 1969), cert denied, 296 U.S. 1061 (1970), 6 discouraging public participation in gambling and thereby minimizing gambling’s attendant social ills. The court held that both of those interests are “substantial” for purposes of the second prong of Central Hudson. Pet. App. 6a-10a. The court further determined that Section 1304 di- rectly advances those interests and is no more re- strictive than necessary, thereby satisfying the third and fourth prongs of the Central Hudson test. Pet. App. 10a-13a. As to the third prong, the court ex- plained that this Court’s cases have expressly recog- nized that “the purpose and effect of advertising is to increase consumer demand,” and it noted that “the vigor with which the statute has been challenged con- firms the efficacy of the prohibition.” /d. at 10a. Relying on Edge, the court rejected petitioners’ claim that the ban does not directly advance the govern- ment’s interest, because the government permits other forms of media to advertise casino gambling; as the court explained, quoting Edge, the government is not “require[d} * * * to make progress on every front before it can make progress on any front.” Jd. at lla-12a. As to the fourth prong of the Central Hudson test, the court noted that it is not a “least restrictive means” test, but one that requires “only that the regulation’s restrictions reasonably fit the desired objective.” Pet. App. 12a. Because Section 1304 is “equally tailored” to its objectives as the restrictions that this Court upheld in Edge and in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), the court found that Section 1304 satisfies the fourth Central Hudson prong. Pet. App. 12a-13a. 7 Chief Judge Politz dissented. Pet. App. 14a-18a. He believed that the statutory exceptions to Section 1304 prevent the statute from directly advancing the gov- ernment’s interests, and that the application of the statute to broadcast advertising in States that permit casino gambling is unduly restrictive. Jd. at 14a-18a." ARGUMENT 1. On May 13, 1996, after the petition was filed, this Court struck down on First Amendment grounds two Rhode Island statutes that prohibited the advertising of retail liquor prices. See 44 Liquormart, Inc. v. Rhode Island, 116 8. Ct. 1495 (1996). 44 Liquormart produced four separate opinions, each of which found the Rhode Island statutes unconstitutional, but none of which commanded a majority of the Court regard- ing the appropriate First Amendment standards for government regulation of commercial speech. Justice Stevens wrote the lead opinion, which was joined in full by Justices Kennedy and Ginsburg and in part by Justices Scalia, Souter, and Thomas. 116 S. Ct. at 1501-1515. Justice Stevens concluded that the Rhode Island statutes failed to satisfy the third and fourth prongs of the Central Hudson test. Id. at 1508-1510 (Part V) (joined by Kennedy, Souter & Ginsburg, JJ.). Justice Stevens, however, advocated the adoption of stricter constitutional standards than those of Central Hudson for laws, such as the Rhode Island statutes, that “entirely prohibit|; the dis- semination of truthful, nonmisleading commercial ’ Another case raising the same First Amendment claim, brought by Nevada television stations, is currently pending before the court of appeals for the Ninth Cireuit. Valley Broadcasting Co. vy. United States, No. 93-16191 (argued Feb. 15, 1995). 8 messages for reasons unrelated to the preservation of a fair bargaining process.” Jd. at 1507-1508 (Part IV) (joined by Kennedy & Ginsburg, JJ.). Justice O’Connor, joined by the Chief Justice and Justices Souter and Breyer, concurred in the judg- ment. 116 S. Ct. at 1520-1528. Justice O’Connor agreed with the lead opinion that the Rhode Island statutes failed to satisfy the fourth prong of Central Hudson. Id. at 1521-1522. Unlike the lead opinion, however, Justice O’Connor declined to depart from the Central Hudson test. Ibid. Justice Scalia and Justice Thomas wrote separate opinions concurring in part and concurring in the judgment. Justice Scalia agreed that the Rhode Is- land statutes were unconstitutional under Central Hudson, but expressed the view that the scope of First Amendment protections for commercial speech should conform to the “long accepted practices of the American people.” 1168S. Ct. at 1515. Justice Thomas called for a rule of per se unconstitutionality for ad- vertising restrictions designed “to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace.” Jd. at 1515-1520. 2. In several respects, 44 Liquormart casts new light on the First Amendment issues decided by the court of appeals. While none of the opinions in 44 Liquormart commanded a majority of the Court re- garding the general standards of First Amendment protection for commercial speech, the opinions do clarify the Court’s prior commercial speech prece- dents in several respects. For example, the lead opin- ion of Justice Stevens and Justice O’Connor’s con- curring opinion both indicate that a blanket ban on commercial speech will ordinarily not survive scru- tiny under the fourth prong of Central Hudson if 9 the interests advanced in support of the ban can be served equally well by alternative, non-speech-related means. See 1168. Ct. at 1510 (Part V) (Stevens, J., joined by Kennedy, Souter & Ginsburg, JJ.); id. at 1521-1522 (O’Connor, J., joined by the Chief Justice and Souter & Breyer, JJ.). Similarly, the lead opinion and Justice O’Connor’s concurrence both question the continued authority of Posadas de Puerto Rico, supra, regarding judicial deference to legislative choices between commercial speech restrictions and other means of reducing consumption of legal prod- ucts. See id. at 1511 (Part VI) (Stevens, J., joined by Kennedy, Thomas & Ginsburg, JJ.); id. at 1522 (O’Connor, J., joined by the Chief Justice and Souter & Breyer, JJ.). Because the court of appeals did not have the bene- fit of this Court’s views in 44 Liquormart, the Court should grant the petition, vacate the judgment of the court of appeals, and remand for further considera- tion, as it did in two recent cases raising commercial- speech issues. See Hospitality Investments of Phila- delphia, Inc. v. Pennsylvania State Police, No. 94- 1247 (May 20, 1996) (remanding for further con- sideration in light of 44 Liquormart); Anheuser- Busch, Ine. v. Schmoke, No. 95-685 (May 20, 1996) (same). In suggesting that the Court remand this case, we do not mean to imply that the decision of the court of appeals is erroneous, or that 44 Liquormart renders Section 1304 unconstitutional in any respect. 44 Liquormart sheds additional light on the First Amendment issues in this case, however, and it is appropriate for the court of appeals in the first in- Stance to reconsider those issues in light of the guidance that may be drawn from 44 Liquormart. 10 CONCLUSION The petition for writ of certiorari should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded for fur- ther consideration in light of 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996). Respectfully submitted. Drew S. Days, Ill Solicitor General FRANK W. HUNGER Assistant Attorney General ANTHONY J. STEINMEYER Scott R. MCINTOSH Attorneys JUNE 1996 - ar, a De tae re he Me Oe Tl re , a rao » » r . = ec «4 : Ty a vehe > ak : POD 7 ° va ; ; > fa in eet : a. j 5 i 2 - & gi ee y a7 ae ee sol ot oN aA, a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1306%3A2. Public record. Not legal advice.