By David L. Hudson Jr.
First Amendment scholar
Many commercial-speech battles occur when the government seeks to regulate
the advertising of harmful or “vice” products or activities such as tobacco,
alcohol or gambling. Many states forbid gambling, while others permit it in the
form of a lottery or casino gaming. In order to lessen the negative effects of
gambling, some government officials have prohibited or restricted gambling
advertisements even in jurisdictions where certain forms of gambling are
Regulators emphasize the debilitating effects of gambling, the tragedies of
life that often befall compulsive gamblers. They cite studies showing that
gambling causes serious harmful effects on health, safety and public
But commercial-speech advocates counter that a central tenet of the U.S.
Supreme Court’s recent First Amendment jurisprudence is that the First Amendment
requires that people decide for themselves what is good and bad. The Court has
established that generally the speaker and the audience, rather than the
government, should assess the value of speech.
Historically, the government retained the power to ban many types of
gambling. Because the Supreme Court did not afford commercial speech substantial
First Amendment protection until the mid 1970s, government officials also had
virtually unchecked power to prohibit gambling advertisements.
Even after the Court had given commercial speech some protection, including
in the areas of pharmacy and attorney ads, a majority of the Court refused to
extend protection to gambling ads.
Posadas: no haven for gambling ads
In 1986 the U.S. Supreme
Court upheld a Puerto Rico law prohibiting the advertising of casino gaming to
Puerto Rican residents in Posadas
de Puerto Rico Associates v. Tourism Co. of Puerto Rico.
Even though Puerto Rico allowed casinos to advertise to prospective tourists,
the government decided that it knew what was best for its own citizens. A
regulation provided: “Advertisements of the casinos in Puerto Rico are
prohibited in the local publicity media addressed to inviting the residents of
Puerto Rico to visit the casinos.”
The Court supported the restriction on casino gaming ads to residents of
Puerto Rico by a narrow 5-4 vote. “In our view, the greater power to completely
ban casino gambling necessarily includes the lesser power to ban advertising,”
Justice William Rehnquist wrote for the court. The reasoning went like this:
Because the activity of casino gambling could be banned, surely the state could
ban advertising of the activity.
Several justices dissented. In colorful language, Justice John Paul Stevens
concluded: “The First Amendment surely does not permit Puerto Rico’s frank
discrimination among publications, audiences, and words. Nor should sanctions
for speech be as unpredictable and haphazardous as the roll of dice in a
Court abandons reasoning of Posadas
advocates also criticized the reasoning of the Posadas majority. Law
professor Phillip Kurland called the ruling “strange” and “pitiful.”
Ten years after Posadas, the Supreme Court rejected much of its
reasoning in a liquor-ad case, 44
Liquormart, Inc. v. Rhode Island, Inc. In 44 Liquormart (1996),
the Court struck down blanket bans on the advertising of liquor prices. Relying
on Posadas, the state of Rhode Island argued that the ad restrictions
were valid in part because alcoholic beverages are “vice” products.
Justice Stevens rejected the “vice” exception, writing that "the scope of any
‘vice’ exception to the protection afforded by the First Amendment would be
difficult, if not impossible, to define. Almost any product that poses some
threat to public health or public morals might reasonably be characterized by a
state legislature as relating to ‘vice activity.’”
The Court in 44 Liquormart also rejected the Posadas argument
that courts should defer to state legislatures when dealing with ads for
products that could conceivably be banned. “[W]e are now persuaded that Posadas
erroneously performed the First Amendment analysis,” the opinion said.
“Instead, in keeping with our prior holdings, we conclude that a state
legislature does not have the broad discretion to suppress truthful,
nonmisleading information for paternalistic purposes that the Posadas majority
was willing to tolerate,” the Court wrote.
The high court also rejected the argument in Posadas that the greater
power to ban an activity necessarily includes the lesser power to ban
advertising about it. It said: “The text of the First Amendment makes clear that
the Constitution presumes that attempts to regulate speech are more dangerous
than attempts to regulate conduct.”
Restriction on gambling ads struck down
It was only a matter of
time after 44 Liquormart that the Supreme Court would strike down a
restriction on gambling ads. The case that brought the issue of gambling ads
back to the Supreme Court was Greater
New Orleans Broadcasting Association, Inc. v. United States (1999).
The case concerned the constitutionality of a federal law that
prohibited radio and television broadcasters from accepting advertising from
privately operated casino gambling regardless of the station or casino’s
location. The statute (18 USC Sect. 1304) prohibited radio and television broadcasting about “any
advertisement of or information concerning any lottery, gift enterprise, or
In 1993, the U.S. Supreme Court had rejected a challenge to the statute filed
by a North Carolina broadcaster who wanted to advertise about the Virginia
Lottery. The Court upheld the statute in U.S. v.
Edge Broadcasting in large part because lotteries were illegal in North
Carolina. The statute furthered Congress’ intent, reasoned the Court, of
“supporting North Carolina’s laws against gambling.”
However, in Greater New Orleans, the broadcasters were located in
Louisiana and Mississippi, states that allowed casino gambling. The government
argued that it could still prohibit these broadcasters from airing gambling ads
because their signals reached Texas and Arkansas — states that do not allow
casino gaming. The government further asserted that its regulation was needed to
reduce the social costs of gambling and to assist states that restricted
gambling. Building on its decision in 44 Liquormart granting commercial
speech more protection, the Supreme Court unanimously ruled in favor of the
The Court noted that the federal government allowed the broadcast of ads for
state-owned lotteries when the broadcaster is licensed in a state that allows a
lottery and allows the broadcast of Native American-owned casino gaming.
The Court in Greater New Orleans said the law was “so pierced by
exemptions and inconsistencies that the Government cannot hope to exonerate it.”
The government still had many ways to regulate the negative effects of gambling
without restricting speech, the Court added. These included “a prohibition or
supervision of gambling on credit, limitations on the use of cash machines on
casino premises; controls on admissions; pot or betting limits; location
restrictions; and licensing requirements.”
The Court emphasized that "the speaker and the audience, not the Government,
should be left to assess the value of accurate and nonmisleading information
about lawful conduct.”
Many people believe that gambling should be outlawed. But, if gambling is
allowed, then the First Amendment sharply limits the power of government to
restrict advertising about a lawful product.
Former Supreme Court Justice Harry Blackmun perhaps said it best in In Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976): “It is
precisely this kind of choice, between the dangers of suppressing information,
and the dangers of its misuse if it is freely available, that the First
Amendment makes for us.”