Amicus Curiae Brief — United States v. Players International, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

UNITED STATES OF AMERICA, et al.,

Petitioners,

Vv.

PLAYERS INTERNATIONAL, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari Before

Judgment to the United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND BRIEF OF AMICI CURIAE

VALLEY BROADCASTING COMPANY AND

SIERRA BROADCASTING COMPANY

IN OPPOSITION TO PETITION FOR CERTIORARI

BEFORE JUDGMENT

GERALD S. ROURKE

7501 Hackamore Drive

Potomac, MD 20854

(301) 983-0776

Counsel for Amici Curiae

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

In THE

Supreme Court of the United Siates

OCTOBER TERM, 1998

No. 98-721

UNITED STATES OF AMERICA, et ai.,

Petitioners,

Vv.

PLAYERS INTERNATIONAL, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari Before

Judgment to the United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Valley Broadcasting Company (“Valley”) and Sierra

Broadcasting Company (“Sierra”), by undersigned coun-

sel, hereby move the Court for leave to file an amicus

curiae brief in the above captioned proceeding. In sup-

port thereof the following is shown.

Petitioner United States has consented to the filing of

an amicus curiae brief by Valley and Sierra in this pro-

ceeding but respondent Players International, Inc., et al.,

has withheld consent.

Valley and Sierra are interested parties in this case and

the Court should grant leave for them to file a brief as

amici curiae. Valley and Sierra are broadcasters who are

the licensees of television stations KVBC-TV, Las Vegas,

Nevada, and KRNV-TV, Reno, Nevada, respectively, and

were the plaintiffs in the case of Valley Broadcasting Com-

pany v. United States, 107 F.3d 1328 (9th Cir. 1997),

cert. denied, 118 Sup. Ct. 1050 (1998). In Valley the

9th Circuit held that 18 U.S.C. Sec. 1304, as amended,

which prohibits the broadcast of advertising for commer-

cial casino gambling, violates the First Amendment. In

Greater New Orleans Broadcasting Association, Inc. v.

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

certiorari filed September 2, 1998, No. 98-387, the Sth

Circuit considered the same question and reached a con-

trary result, upholding the constitutionality of 18 U.S.C.

Sec. 1304, as amended, and holding that the Government

may prohibit the broadcast of advertising for commercial

casino gambling. Thus there is a conflict between the

circuits in Valley and Greater New Orleans which pre-

sumably will have to be resolved by this Court at some

point.

By its petition for certiorari before judgment in this

case, Players International, Inc. v. United States, 988

F. Supp. 497 (D. NJ 1998), the Government seeks to

bypass the 3rd Circuit Court of Appeals and have this

Court resolve the constitutional conflict between Valley

and Greater New Orleans in Players.

Certiorari having been denied in Valley, that decision

is now final, and Valley and Sierra, as well as all other

broadcasters in the 9th Circuit, are now free to carry

advertising for commercial casino gambling. The only

1 Following the district court decision in Valley, the FCC on

June 2, 1993, issued a Public Notice (DA 93-626) that it would not

enforce the federal ban on commercial casino advertising against

broadcasters in the State of Nevada only, and following the 9th

Circuit decision upholding the district court ruling, the FCC on

way the outcome of the Valley case now can be reversed

is by this Court’s reaching a contrary result on the con-

stitutional question decided there in either Greater New

Orleans or Players. Thus Valley and Sierra have a clear

interest in this Court’s consideration of the constitutional

question first raised in Valley, and in the question whether

the Court should grant certiorari before judgment and

consider that question in the Players case.

WHEREFORE, the premises considered, the Court is

respectfully requested to grant leave to Valley and Sierra

to file the attached brief as amici curiae.

Respectfully submitted,

GERALD S. ROURKE

7501 Hackamore Drive

Potomac, MD 20854

(301) 983-0776

Counsel for Amici Curiae

September 17, 1997, issued a Public Notice (DA 97-2014) that it

would not enforce the ban against hrvadcasters in the 9th Circuit

only. (A comparable Public Notice applying only to broadcasters

in the State of New Jersey was issued by the Commission follow-

ing the decision by the district court in Players. See Petition,

p. 11.)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST ....

REASONS THE PETITION SHOULD BE DENIED...

I, THERE IS NO BASIS UNDER RULE 11 FOR

GRANTING CERTIORARI BEFORE JUDG-

gaelic cast cect ae iN ate

Il. THE EVIDENTIARY RECORD IS NOT A

SUFFICIENT BASIS FOR CERTIORARI BE-

FORE JUDGMENT HERE 000202...

Ill. THERE IS NO SUPPORT IN PRECEDENT

FOR GRANTING CERTIORARI BEFORE

JUDGMENT HERE

CONCI ARNE ecistitcnek tah ese s Rees eS

(i)

Page

ii

TABLE OF AUTHORITIES

CASES Page

Bolling v. Sharpe, 347 U.S. 497 (1954) ....0........... 7

Brown v. Board of Education, 347 U.S. 483

(1954) 7

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

(1996) 4

Greater New Orleans Broadcasting Ass'n v. U.S.

149 F.3d 334 (5th Cir. 1998) ...2, 4, 5, 6

6

6

6

6

McCullogh v. Sociedad Nacional de Marineros, 372

U.S. 10 (1963)

McElroy v. Guagliardo, 361 U.S. 281 (1960)...

Mistretta v. United States, 488 U.S. 861 (1989) ....

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

Players Intern., Inc. v. U.S., 988 F. Supp. 497 (D.

N.J. 1997) 2,4

United States v. Nizon, 418 U.S. 688 (1974)... 6

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

1828 (9th Cir. 1997), cert. denied, 118 S. Ct.

1050 (1998) . 2&8

CONSTITUTION, STATUTES AND RULE

U.S. Const. amend. I . IT SM CES 2, 3,5

Charity Games Advertising Clarification Act, 18

U.S.C. 1807 (a) PR AAO PE a ae om de AE a 5

Indian Casino Regulatory Act, 25 U.S.C. 2701,

CL SESE I Ta vee oe a) re be) 5

18 U.S.C. 1804, as amended talinsataieaiebiaaiantienestiele tial: 2, 3,4

Uniform Code of Military Justice, Article 2(11).. 6

Bem, GR Fh, BB cucsissnilicnintcisctsiblasttalee 2,7

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

No. 98-721

UNITED STATES OF AMERICA, et al.,

Petitioners,

Vv.

PLAYERS INTERNATIONAL, INC., ef al.,

Respondents.

On Petition for a Writ of Certiorari Before

Judgment to the United States Court of Appeals

for the Third Circuit

BRIEF OF AMICI CURIAE

VALLEY BROADCASTING COMPANY AND

SIERRA BROADCASTING COMPANY

IN OPPOSITION TO PETITION FOR CERTIORARI

BEFORE JUDGMENT

STATEMENT OF INTEREST

As indicated in the Motion for Leave to File Amicus

Curiae Brief bound herewith, Amici Curiae! were the

1 This brief was authored by counsel for amici curiae and no

person or entity other than amici curiae made a monetary contri-

bution to the preparation and submission of this brief.

eee

2

plaintiffs in the case of Valley Broadcasting Company v.

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

nied, 118 Sup. Ct. 1050 (1998), one of the three cases

in which courts below have split on the question whether

18 U.S.C. Sec. 1304, as amended, which prohibits the

broadcast of advertising for commercial casino gambling,

violates the First Amendment. In Valley the 9th Circuit

held the statute unconstitutional, as did the District Court

of New Jersey in this case, Players International, Inc. v.

United States, 988 F. Supp. 497 (D. NJ 1998), whereas

in Greater New Orleans Broadcasting Association, Inc. v.

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

certiorari filed September 2, 1998, No. 98-387, the Sth

Circuit upheld the constitutionality of the statute. Since

effectively Valley will be reversed if this Court upholds

the constitutionality of 18 U.S.C. Sec. 1304, as amended,

in either Greater New Orleans or Players, Amici Curiae

are interested parties, both on the merits and on the ques-

tion whether the Court should grant certiorari before

judgment in Players.

REASONS THE PETITION SHOULD BE DENIED

I. THERE IS NO BASIS UNDER RULE 11 FOR

GRANTING CERTIORARI BEFORE JUDGMENT

HERE.

Rule 11 of this Court’s Rules states that a petition for

certiorari before judgment in a court of appeals will be

granted only upon a showing that the case is “of such

imperative public importance” as to justify deviation from

normal appellate practice and to require immediate deter-

mination in this Court. In its petition the Government

does not even claim that this standard is met in this case,

in fact it virtually concedes that the standard is not met.

See Petition, p. 23.

This case is plainly not of such imperative public im-

portance as to justify the extraordinary procedure pro-

3

posed by the Government here. As indicated in footnote 1

of the Motion for Leave to File Amicus Curiae Brief sub-

mitted herewith, Amici Curiae and the other broadcasters

in Nevada have been carrying advertising for commercial

casino gambling now for over 5 years, and such ads have

been permitted in all of the 9th Circuit for over a year,

without any noticeable reaction on the part of the public

in any of those jurisdictions. Of course, one reason why

the public may not consider the airing of these ads to be

a matter of any particular importance may be that the

same kind of ads for Indian casino gambling have been

carried by broadcasters all over the country for the last

ten years. Under the circumstances it is understandable

that the public may simply consider that a casino gam-

bling ad is a casino gambling ad, without regard to

whether the party operating the casino is an Indian tribe,

or a commercial licensee of a state, or a governmental

entity, or a non-profit organization. In any event, the

question at issue in this case is not one which has attracted

very much public attention or interest.

Moreover, it should be noted that heretofore the Gov-

ernment has not been in any hurry to have the Court

address this question of the constitutionality of 18 U.S.C.

Sec. 1304, as amended. Although the 9th Circuit ruled

in Valley that the statute violated the First Amendment,

the Government did not raise the constitutional question

in its petition for certiorari in that case last term. See

Petition for a Writ of Certiorari in United States v. Valley

Broadcasting Co., No. 97-1047. How can the constitu-

tional issue now be important enough to warrant review

before judgment in this case, when last term it was not

even important enough to warrant being raised in the

Valley petition for certiorari?

Ce

4

Il. THE EVIDENTIARY RECORD IS NOT A SUFFI-

CIENT BASIS FOR CERTIORARI BEFORE JUDG-

MENT HERE.

The Government’s only justification for its Petition for

Certiorari Before Judgment is that the evidentiary record

in this case is allegedly more extensive than the record

in Greater New Orleans. Petition, pp. 13, 23. The evi-

dentiary record in this case was developed after 44 Liquor-

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

the Government, and is “more illuminating” than the rec-

ord in Greater New Orleans. Petition, p. 23. Yet Greater

New Orleans was remanded by this Court to the Sth

Circuit specifically f-« reconsideration in light of 44 Lig-

uormart, on remand the Government was given an oppor-

tunity to supplement its earlier evidentiary ‘submission,

and the Government did so extensively, see Greater New

Orleans, 149 F.3d at 338-339. Thus, the pertinent ques-

tion would seem to be not which record is more extensive

but whether the difference is of any significance to the

resolution of the constitutional issue which is common -

to both cases.

The most noteworthy thing about the Government’s

now voluminous record evidence in both of these cases is

that in each case the court below rejected that evidence

as not being probative of the issues before the court. In

this case the district court stated:

Here, notwithstanding the articles and studies sub-

mitted, the government provides no evidentiary sup-

port beyond a mere assumption, that § 1304’s com- |

mercial ban on gaming advertising will significantly |

reduce gambling addiction or violence.

988 F. Supp. at 506.

Likewise, in Greater New Orleans, although the divided

5th Circuit upheld the constitutionality of section 1304,

as amended, the court stated. with respect to the Govern-

ment’s new evidence regarding compulsive gambling:

5

The government’s new argument suffers fatally, how-

ever, because none of its sources specifically connect

casino gambling and compulsive gambling with broad-

cast advertising for casinos.

149 F.3d at 339.

In short, the Government is asking this Court to grant

certiorari before judgment because its record is more

extensive here than in Greater New Orleans, but in both

cases the court below held that the Government’s evi-

dence was not probative of the issues. Surely, reviewing

evidence which two courts have already found not to be

probative is a job better left to the 3rd Circuit. Pre-

sumably this Court has better things to do with its time

than that.

It should also be noted that this is not particularly a fact-

driven case. Contrary to the implication of the Govern-

ment’s new evidence regarding compulsive gambling (see,

e.g., footnotes 9-11 in Greater New Orleans, 149 F.3d at

338-339), the question at issue here is not whether there

should be advertising of casino gambling over the air.

For better or worse, that question was answered by the

Congress in 1988 in the Indian Gaming Regulatory Act,

25 U.S.C. 2701, et seq., and the Charity Games Adver-

tising Clarification Act, 18 U.S.C. 1307(a), where the

Congress authorized broadcasters to carry ads for casino

gambling run by Indian tribes, government entities, not-

for-profit organizations, and commercial! organizations as

long as their gambling activities are occasional and ancil-

lary to their principal business. The question at issue here

is whether under the First Amendment the Congress can

make a law authorizing broadcasters to carry commercial

announcements for one group of advertisers and prohibit

them from carrying the same commercial announcements

for another group of advertisers, even though the ads

for the second group are concededly truthful and about

lawful activities. Whether the Government’s record evi-

See ee

6

dence about compulsive gambling and the like is more

extensive here or in Greater New Orleans is immaterial,

because in the final analysis this case is not primarily

about gambling, it is about speech.

Ill. THERE IS NO SUPPORT IN PRECEDENT FOR

GRANTING CERTIORARI BEFORE JUDGMENT

HERE.

The Government acknowledges that the constitutional

issue in this case “does not have the manifest urgency”

that led the Court to issue certiorari before judgment in

cases such as Mistretta v. United States, 488 U.S. 361

(1989), and United States v. Nixon, 418 U.S. 683 (1974).

(Petition, p. 23.) However, the Government goes on to

argue, in its footnote 4 on pages 24-25 of its Petition,

that on various occasions, the Court has granted certiorari

prior to judgment in one case when another case before

the Court “presented the same or similar issues and the

Court’s resolution of those issues would benefit from con-

current review of the case pending in the court of appeals.”

The Government cites four cases for this statement, but

none of the cases cited supports such a broad reading

of the Court’s prior practice with respect to granting

certiorari before judgment.

The first two cases cited, New Haven Inclusion Cases,

399 U.S. 392, 418 (1970), and McCullough v. Sociedad

Nacional de Marineros, 372 U.S. 10, 12 (1960), were

both situations where the district court case involved the

same transaction as the circuit court case before this

Court, and it was necessary for the Court to decide both

cases in order to bring closure to the transaction. The

third case, McElroy v. Guagliardo, 361 U.S. 281, 283

(1960), was one of four cases decided the same day

presenting different questions under Article 2(11) of the

Uniform Code of Military Justice, which provided for

trial by court-martial of “all persons serving with, em-

ployed by, or accompanying the armed forces outside the

7

United States”, concerning whether the statute could con-

stitutionally be applied in peacetime. Although one of the

cases was pending on appeal to a circuit court, the Court

granted certiorari before judgment in that case in order

to address all four cases under the statute at the same

time. That action hardly supports a grant of certiorari

before judgment here, where there is only one question at

issue and there are already two circuit court decisions in

conflict.

The fourth case cited by the Government, Bolling v.

Sharpe, 347 U.S. 497, 498 (1954) was a companion

case to the case with perhaps the most “imperative public

importance” of any decided by this Court in the twentieth

century, Brown v. Board of Education, 347 U.S. 483

(1954), which prohibited the states from maintaining

racially segregated public schools. Bolling raised the same

issue and resulted in the same prohibition being applied

to the District of Columbia. Needless to say, the grant of

certiorari before judgment in Bolling is not a basis for

such action in this case.

CONCLUSION

Under the Court’s Rule 11 this case is not of such

imperative public importance as to justify deviation from

normal appellate practice, and under the Court’s prior

cases there is no basis for a grant of certiorari before

judgment here. Accordingly, the Petition for Certiorari

Before Judgment should be denied.

Respectfully submitted,

GERALD S. ROURKE

7501 Hackamore Drive

Potomac, MD 20854

(301) 983-0776

December 1, 1998 Counsel for Amici Curiae