If the government has the greater power to ban gambling ads, why would there be any constitutional problem with restricting speech about gambling?

Monday, December 9, 2002

There could be a constitutional problem because the United States Supreme Court has written that “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.”

In its 1986 decision in Posadas De Puerto Rico Associates v. Tourism Company of Puerto Rico, the Court did adopt the so-called “greater-includes-the-lesser argument.” The Court wrote that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.” This decision was heavily criticized by legal commentators as failing to provide sufficient protection for freedom of speech.

A decade later, in a 1996 case concerning liquor ads, 44 Liquormart, Inc. v. Rhode Island, the Court rejected this argument. The Court reasoned that attempts to suppress speech are oftentimes worse than banning conduct. Because the free flow of information is vital to a constitutional democracy, the government often has less power to regulate speech, particularly truthful speech.