Opposition Brief — United States v. Players International, Inc.

Supreme Court. Uj ¢

2 es i 2D

0 NOV 25 1998

No. 98-721 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

UNITED STATES OF AMERICA, et al.,

Petitioners,

V.

PLAYERS INTERNATIONAL, INC., eft al.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

STEVEN P. PERSKIE W. RANDOLPH TESLIK, P.C.*

SHERRI A. AFFRUNTI TOM W. DAVIDSON

HORN, GOLDBERG, GORNY, EDWARD J. MCANDREW

PLACKTER, WEISS & PERSKIE AKIN, GUMP, STRAUSS,

1300 Atlantic Avenue HAUER & FELD, L.L.P.

Suite 500 1333 New Hampshire Avenue, N.W

Atlantic City, New Jersey 08401 Suite 400

(609) 343-7807 Washington, D.C. 20036

(202) 887-4000

November 25, 1998 *Counsel of Record

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-721

UNITED STATES OF AMERICA, et al.,

Petitioners,

V.

PLAYERS INTERNATIONAL, INC., et al.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

LIST OF PARENT COMPANIES AND NONWHOLLY

OWNED SUBSIDIARIES

Respondent Players International, Inc. is a publicly traded

corporation, with wholly owned subsidiaries. The following

Respondents are wholly owned — subsidiaries of Players

International, Inc.: Players Lake Charles, LLC, Players Star

Partnership; Southern Illinois Riverboat/Casino Cruises, Inc.

STATEMENT

Contrary to Petitioners’ assertion, Respondents do not

contend “that the application of Section 1304 to broadcast

advertising for lawful commercial casino gambling in States that

permit such gambling violates the First Amendment under the

commercial speech doctrine ... .” Pet. at 8. Instead,

2

Respondents assert that Section 1304 abridges thei First

Amendment rights to broadcast truthful, non-misleadiny

advertisements for lawful, commercial casino gaming in any

State of the United States. Respondents are not otherwis:

dissatisfied with Petitioners’ statements pursuant to Supreme

Court Rules 24. 1(a), (b), (d), (e), (f) or (g).

ARGUMENT

In two filings before the Court, Petitioners request that the

Court deny certiorari in Greater New Orleans Broadcasting

Ass'n v. United States, No. 98-387, and await the Third Circuit’s

forthcoming decision in this case before deciding the

constitutionality of 18 U.S.C. § 1304. If the Court chosses to

exercise certiorari jurisdiction over Greater New Or/eans

Broadcasting Ass'n v. United States, No. 98-387, at this time,

then the Court should do likewise in this case and should dispose

of both matters on a consolidated basis. Consideration of both

cases will present the best opportunity to resolve Section 1304’s

constitutionality on the strength or weakness of divergent factual

records. Consolidation also will comport with this Court’s past

exercises of certiorari before judgment.

Respondents agree that the Circuits’ divergent views on

Section 1304’s constitutionality are appropriate for this Court’s

review. See Pet. at 12. By consolidating both cases, this Court

will have before it two, very different decisions. One upholds

the statute; the other invalidates it. One finds the evidentiary

record largely irrelevant; the other finds it wholly insufficient.

The Greater New Orleans Broadcasting petitioners argue that

Section 1304’s constitutionality is a doctrinal issue that the Fifth

Circuit decided incorrectly. See Pet. in No. 98-387, at 11-18;

Reply in No. 98-387, at 1-2 & n.1. The respondents there,

Petitioners here, argue that the Players record best illuminates

the constitutional issue. See Br. in Opp. in 98-387, at 18; Pet. at

12-13.

Considered together, these two cases afford an opportunity

for the Court to resolve Section 1304’s constitutionality, while

=

3

clarifying the government’s evidentiary burden in_ the

commercial speech analysis. Respondents concur with the

Greater New Orleans Broadcasting petitioners that their case

was decided incorrectly. Petitioners here presented no evidence

in that case sufficient to sustain Section 1304. See Pet. at 22-23;

Br. in Opp. in No. 98-387, at 9-10 & 18-19. If the Court were to

exercise certiorari and agree, then its consideration of Players

becomes critical to determining whether the government’s

“more illuminating record,” Pet. at 13, can support Section 1304

in light of 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996).

Consolidation also will comport with past instances in which

this Court has exercised certiorari before judgment when

presented with multiple cases involving the same issues. See,

e.g., New Haven Inclusion Cases, 399 U.S. 392, 418 (1970),

McCulloch v. Sociedad Nacional de Marineros, 372 U.S. 10, 12

(1963); McElroy v. United States, 361 U.S. 281, 282-83 (1960).

In these cases, the Court exercised certiorari before judgment to

consolidate one case with another case, pending before the

Court, that presented a similar or identical question of

constitutional importance. Issuing certiorari and consolidating

both cases therefore will be consistent with the Court’s past

practices.

4

CONCLUSION

If the Court chooses to resolve the constitutionality of 18

U.S.C. § 1304 at this time, the petitions for a writ of certiorari in

this case and in Greater New Orleans Broadcasting Ass'n v.

United States, No. 98-387, should be granted and those cases

should be consolidated.

Respectfully submitted,

W. RANDOLPH TESLIK, P.C.*

TOM W. DAVIDSON

EDWARD J. MCANDREW

AKIN, GUMP, STRAUSS,

HAUER & FELD, L.L.P.

1333 New Hampshire Avenue, N. W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

STEVEN P. PERSKIE

SHERRI A. AFFRUNTI

HORN, GOLDBERG, GORNY,

PLACKTER, WEISS & PERSKIE

1300 Atlantic Avenue

Suite 500

Atlantic City, New Jersey 08401

(609) 343-7807

*Counsel of Record