The federal ban on broadcast advertising for gambling casinos violates the First Amendment, a unanimous Supreme Court ruled today.
Ruling in Greater New Orleans Broadcasting Association v. United States, Justice John Paul Stevens said the ban was "so pierced by exemptions and inconsistencies" that it could not fulfill its stated purpose of minimizing the social effects of gambling. As a result, the court said the law was an impermissible restriction on the free-speech rights of casino operators.
The ban was first enacted in 1934, but over the years, exceptions have been carved out allowing advertising for Indian casinos as well as for state lotteries and gambling at sports events such as dog racing and jai alai. The law was challenged by New Orleans broadcasters seeking to advertise commercial casinos in Louisiana and Mississippi. A federal appeals court upheld the law.
Today's ruling continues the high court's trend of giving greater First Amendment protection to commercial speech. But the justices stopped short of abandoning the so-called "Central Hudson test," derived from the 1980 decision, Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of N.Y. Advertising and First Amendment advocates were hoping the Supreme Court would scrap the test in favor of a more direct endorsement of commercial-speech rights.
But Stevens said the court did not need to go that far to strike down the federal law. He said the ban failed even under the Central Hudson test, which looks at whether the restriction on commercial speech advances a substantial government interest and whether the advertising is lawful and isn't misleading.
The law failed particularly on the question of whether it advanced a substantial government interest, the court said. Minimizing the social cost of gambling is a "substantial" interest, Stevens agreed, but the law, with all its exceptions, can no longer be said to advance it.
"Decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment," Stevens wrote.
Chief Justice William Rehnquist wrote a separate concurrence suggesting that the ban might be constitutional if it were part of a comprehensive effort by Congress to regulate gambling. Justice Clarence Thomas also wrote separately to indicate he would have scrapped the Central Hudson test and struck down the federal law simply because its goal was illegitimate.
Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.