Supreme Court questions government’s rationale for casino ad ban

Wednesday, April 28, 1999

WASHINGTON — The Supreme Court yesterday appeared headed toward striking down a federal law that bans television and radio advertising by private casinos.

But the court did not seem quite ready to use the dispute over casino advertising to rewrite its doctrine on commercial speech and give it maximum First Amendment coverage.

The questioning by justices during oral arguments suggested that many, if not most, were skeptical of the government’s argument that the ban was needed to protect compulsive gamblers from the lure of casino advertising.

If the law does fall, it will probably happen because so many exceptions have been allowed in the 65 years since the ban was first enacted. Bruce Ennis, arguing on behalf of broadcasters who want the ban lifted, noted that because of exceptions, advertising is permitted for 38 state lotteries, 240 casinos run by Indian tribes in 21 states, as well as horse and dog racing and jai alai. Private casinos themselves, he added, are allowed to advertise their non-casino offerings and to use their names in the ads, even if the name includes the word “casino.”

The law, he concluded, is so “riddled with exceptions” that it cannot possibly advance the government’s stated interest in reducing the harmful effects of gambling.

Several justices appeared to agree with Ennis that under the First Amendment, a government restriction on speech — even advertising or commercial speech — must be struck down if the government cannot make a strong case to justify it.

“The government does not assert there is any difference in the social cost of gambling in private casinos as opposed to Indian casinos,” Ennis said.

Justice Department lawyer Barbara Underwood tried to defend some of the exceptions to the law, noting that the federal government has a “special relationship” with Indian tribes that justifies allowing them to advertise their casino operations.

But Justice Anthony Kennedy indicated he doubted that it was permissible for government to “prefer one group over another in its speech statutes.”

A group of New Orleans broadcasters challenged the law, but last year a federal appeals court upheld it as an appropriate measure to advance the government’s goal of limiting the harmful effects of gambling. In the meantime, two other appeals courts have ruled against the law, creating a patchwork of enforcement across the country.

Media organizations have urged the high court to use the case as a vehicle for giving commercial speech the same First Amendment protection as other forms of speech. Until now, the court has given commercial speech a slightly lower level of First Amendment respect than traditional news, opinion or political commentary.

Ennis told the justices that Greater New Orleans Broadcasting Association v. U.S. would be an “appropriate vehicle” for the court to elevate commercial speech, but added that the justices did not need to go that far to justify striking down the law. Ennis, a veteran court strategist, may not have wanted to ask the court for too much, preferring to limit his request to a narrow win for his clients.

The arguments were marred by some awkward miscues. Ennis, who argued on behalf of the broadcasters, addressed Justice Ruth Bader Ginsburg as “Justice O’Connor,” the court’s other female justice. Male lawyers have made this mistake often enough that Ginsburg has a T-shirt that says “I’m Ruth, not Sandra,” and O’Connor has one inscribed, “I’m Sandra, not Ruth.”

At another point, Justice Antonin Scalia referred to Justice Kennedy as “Senator Kennedy.” With a deadpan expression, Kennedy leaned forward and said, “I have a lifetime appointment.” Laughter broke out in the courtroom.

Following yesterday’s arguments, a decision from the court could come anytime before the justices adjourn for the summer 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.