Government has lonely task in defending broadcast ban on casino ads

Tuesday, April 27, 1999

The Clinton administration will be all by itself today when it goes before the Supreme Court to defend the longstanding ban on broadcast advertising for casinos.

Though the gaming industry and media organizations have papered the court with friend-of-the-court briefs arguing against the ban, the court file on Greater New Orleans Broadcasting Association v. U.S. contains no briefs supporting the government side.

The broadcasters are challenging the ban, which they say has been turned to “Swiss cheese” by myriad exceptions that allow for the advertising of Indian casinos as well as state-run lotteries and off-track betting on horse and dog races and jai alai. Some of those ads even tout “Vegas-style” entertainment, but the casinos of Las Vegas may not advertise because of the ban. The 5th U.S. Circuit Court of Appeals upheld the ban, asserting it was appropriate for government to target the “powerful sensory appeal of gambling conveyed by television and radio.”

The briefs make it clear that the media hope the court’s decision will have impact well beyond the casino industry. Media and advertising groups, hoping the case will inspire the court to give commercial speech even more First Amendment protection than it already enjoys, have offered up a full-blown history of advertising and its role in the commerce and communication of the nation since colonial times.

One brief filed by the Association of National Advertisers even contains reproductions of the front pages of The New York Journal, the Independent Gazetteer, and The Boston Gazette from the late 1780s, the period when the Constitution was being drafted. All contain advertisements, reminding the court that advertising has as lengthy a pedigree as the kind of reporting that is usually viewed as the core of what is protected by the First Amendment. That could be a powerful argument for a conservative court that often looks to the intent of the framers, or conditions at the time of the framers, to determine the meaning of constitutional clauses.

The ANA brief also urges the court to abandon its past tests for assessing commercial speech and instead to adopt a “strict scrutiny” standard to examine government restrictions on truthful, non-misleading commercial speech. That, in essence, would give commercial speech virtually the same high level of First Amendment protection as core political speech.

“Eighteenth century Americans undoubtedly would have rejected the suggestion that the First Amendment to the Constitution they adopted distinguishes between what we latter-day Americans have chosen to classify as commercial and noncommercial speech,” the ANA’s brief, written by lawyer John Walsh, tells the court.

Another brief, by the American Advertising Federation, drives home the point that “the development of a free press and of a commercial, advertising-driven press were inextricably linked … as a result, the modern distinction between ‘commercial’ messages and other forms of speech would not have occurred to colonial Americans.”

The conservative Washington Legal Foundation is also weighing in, arguing that “the government may not restrict speech to influence choice — either in the voting booth or in the marketplace.”

The Clinton administration claims that the ad ban is beneficial, helping to reduce the social costs of gambling and insulating the residents of states that ban gambling from the influence of gambling in states where it is legal.

But Bruce Ennis, who is arguing the case for the broadcasters, responds in a brief that past rulings of the court in the commercial-speech area make it clear that “enforced ignorance is antithetical to the First Amendment.”

The American Gaming Association also argues that the government is using “junk social science” to assert that the advertising ban reduces the harmful effects of gambling. It argues that the gambling industry provides “substantial benefits” to society.

Following today’s arguments, the court’s decision could come anytime before the end of the court’s term in late June or early July.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.