UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-30732
_______________________
GREATER NEW ORLEANS BROADCASTING ASSOCIATION, ET AL.,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA and FEDERAL COMMUNICATIONS COMMISSION,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
July 30, 1998
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before POLITZ, Chief Judge, JONES, and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The Supreme Court remanded this case for reconsideration
in light of 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116
S. Ct. 1495 (1996). Concluding that 44 Liquormart requires us to
revise the Central Hudson1 analysis in our previous opinion, we
amend that opinion but nevertheless affirm the judgment of the
district court.
1
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of
N.Y., 447 U.S. 557, 100 S. Ct. 2343 (1980)
What seemed a fairly straightforward analysis when this
panel first considered the constitutionality of the federal statute
prohibiting the broadcast of radio and television advertisements
for casino gambling, 18 U.S.C. § 1304, has dissolved into a welter
of confusion following 44 Liquormart. On one hand, in 1993, the
Supreme Court upheld a companion provision that bans some broadcast
advertising of state-sponsored lotteries, and five Justices
approved the following statement:
In response to the appearance of state-sponsored
lotteries, Congress might have continued to ban all radio
or television lottery advertisements, even by stations in
States that have legalized lotteries.
United States v. Edge Broad. Co., 509 U.S. 418, 428, 113 S. Ct.
2696, 2704 (1993). On the other hand, after 44 Liquormart was
decided, the Ninth Circuit felt obliged to hold unconstitutional
the provision at issue in this case, which bans radio and
television advertisements for privately-run casino gambling.2 Has
Edge lost its edge in the succeeding five years? Or on the
contrary, has the rule of Edge, become a constitutional mandate?
Such that Congress can now ban broadcast advertisements for
gambling only in states that prohibit such gambling? Finally, has
the Supreme Court gone over the edge in constitutionalizing speech
protection for socially harmful activities? The following
2
See Valley Broad. Co. v. United States, 107 F.3d 1328 (9th
Cir. 1997), cert. denied, 118 S. Ct. 1050 (1998).
2
discussion will suggest that the Supreme Court’s jurisprudence has
become as complex and difficult to rationalize as the statutory
advertising regulations the Court has condemned.3
To put the discussion in perspective, it is necessary to
review this court’s previous application of the Central Hudson
balancing test to § 1304. Section 1304 prohibits broadcast
advertising of “any advertisement of or information concerning any
lottery, gift enterprise, or similar scheme, offering prizes
depending in whole or in part upon lot or on chance . . . .” This
court applied the four-part test set forth in Central Hudson to
determine whether § 1304 is a permissible regulation of commercial
speech. Central Hudson recognized that truthful, non-misleading
commercial speech is entitled to limited protection under the First
Amendment. The first two prongs of the test are satisfied here:
the casino owners’ speech concerns lawful activity and is not
misleading, and the government asserts substantial public interests
in discouraging public participation in commercial gambling and in
assisting states that restrict gambling by regulating broadcasting
that is beyond the states’ regulatory powers.4
3
See 44 Liquormart, 517 U.S. 484, 116 S. Ct. 1495 (1996);
Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S. Ct. 1585 (1995).
4
See Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto
Rico, 478 U.S. 328, 341, 106 S. Ct. 2968, 2977 (1986) (“We have no
difficulty in concluding that the Puerto Rico legislature’s
interest in the health, safety, and welfare of its citizens
constitutes a ‘substantial’ governmental interest.”).
3
The majority and dissent in our earlier opinion parted
company over application of the third Central Hudson standard,
which inquires whether the advertising ban contained in § 1304
“directly advances the governmental interest asserted.” The
majority relied on numerous assertions by the Supreme Court that
the purpose and effect of advertising are to increase consumer
demand and, conversely, that limits on advertising will dampen such
demand. See Edge, 509 U.S. at 433-34, 113 S. Ct. at 2707; Posadas,
478 U.S. at 342, 106 S. Ct. at 2977; Central Hudson, 447 U.S. at
569, 100 S. Ct. at 2353. The majority distinguished the Supreme
Court’s striking down of a federal prohibition on labeling the
alcoholic strength of beer, where the entire legislative scheme
represented an “irrational” patchwork and actually approved
promotional advertising of stronger alcoholic beverages. Rubin v.
Coors Brewing Co., 514 U.S. 476, 486-87, 115 S. Ct. 1585, 1591-92
(1995). The panel’s dissent, however, relied heavily on Rubin to
emphasize that federal law embodies a ban on advertising various
forms of gambling “so pockmarked with exceptions and buffeted by
countervailing state policies that it provides, at most, a very
minimum support for the asserted interest.”5 Greater New Orleans
5
Excepted from § 1304's application are advertisements for
(1) fishing contests, 18 U.S.C. § 1305; (2) wagers on sporting
events, 18 U.S.C. § 1307(d); (3) state lotteries, Id. § 1307(a)(1),
(2); (4) Indian gaming of all types, 25 U.S.C. § 2701; (5)
charitable lotteries, 18 U.S.C. § 1307(a)(2)(A); (6) governmental
lotteries, Id. § 1307(a)(2)(A); and (7) occasional and ancillary
4
Broad. Ass’n. v. United States, 69 F.3d 1296, 1304 (Politz, C.J.,
dissenting), vacated, 117 S. Ct. 39 (1996).
This Court’s majority and dissenting decisions also
disagreed about the fourth Central Hudson criterion, which analyzes
whether § 1304 cabins speech no more than necessary to serve the
government’s interests. The majority relied on an understanding
that this prong of Central Hudson is not a “least restrictive
means” test and that it requires only that the regulation’s
restrictions reasonably fit the desired objective. See Greater New
Orleans Broad., 69 F.3d at 1302 (citing Florida Bar v. Went For It,
Inc., 515 U.S. 618, 630-31, 115 S. Ct. 2371, 2379 (1995)). The
majority then relied on Posadas, a decision which granted deference
to the tailoring decision of the Puerto Rican legislature. See
Greater New Orleans Broad., 69 F.3d at 1302. In Posadas, Puerto
Rico was permitted to ban casino gambling advertising aimed at its
residents, while permitting them to be solicited for other wagering
games like cock fights. This court’s dissenting member believed,
however, that the § 1304 broadcast advertising ban is overbroad,
because it fails to accommodate the policies of states that have
legalized casino gambling. See id. at 1304 (Politz, C.J.,
dissenting).
commercial lotteries, Id. § 1307(a)(2)(B).
5
After our panel issued its split decision, 44 Liquormart
became the Supreme Court’s newest pronouncement on the protection
of commercial speech under the first amendment. At issue in 44
Liquormart was the constitutionality of a Rhode Island law that
banned all advertisement of liquor prices outside the beverage
stores’ sales premises. The Supreme Court overturned the statute,
and while the Court declined to modify the Central Hudson test, it
divided over the interpretation of the third and fourth prongs.
Justice Stevens, writing for four members, would require Rhode
Island to show, for purposes of the third prong, that the statute
directly advanced the state’s asserted interest in promoting
temperance by demonstrating that the advertising ban significantly
reduced alcohol consumption. See 44 Liquormart, 517 U.S. at 505-
06, 116 S. Ct. at 1509-10. Justice O’Connor, writing for three
members of the court, pointedly declined to adopt Justice Stevens’s
approach on the third prong. See id. at 529-32, 116 S. Ct. at
1521-22 (O’Connor, J., concurring). Thus, after 44 Liquormart,
what level of proof is required to demonstrate that a particular
commercial speech regulation directly advances the state’s interest
is unclear.
The Court was nearly uniform, however,6 concerning
6
Justice Thomas would abandon Central Hudson altogether and
accord “commercial speech” the full protection of the First
Amendment. See 44 Liquormart, 517 U.S. at 518-28, 116 S. Ct. at
6
Central Hudson‘s fourth prong: the justices were willing to
scrutinize more carefully whether the state’s chosen regulation of
commercial speech is closely enough tailored to serve the
governmental interests without unduly burdening free speech. In
particular, the Court decided, in the context of an outright ban of
certain commercial speech,7 to consider the availability of other,
non-speech-related policies or measures that would more directly
accomplish the state’s purposes. Because the state’s asserted goal
was to deter price competition, in order to keep prices high and
ultimately reduce liquor consumption, the Court pointed out the
availability of taxation and minimum price regulation to accomplish
that objective directly.
Eight members of the Court also ruled out the deference
to the legislature demonstrated in the Posadas case with respect to
restrictions on commercial speech. As Justice O’Connor put it,
The closer look that we have required since Posadas
comports better with the purpose of the analysis set out
in Central Hudson, by requiring the state to show that
the speech restriction directly advances its interest and
is narrowly tailored.
44 Liquormart, 517 U.S. at 531-32, 116 S. Ct. at 1522.
1515-20 (Thomas, J., concurring). Justice Scalia, while indicating
discomfort with Central Hudson, was not ready to abandon it yet but
concurred only in the judgment overturning the statute. See id. at
517-18, 116 S. Ct. at 1515 (Scalia, J., concurring).
7
No alternative channels were permitted for liquor sellers
to publicize the price of their products off-premises.
7
The broadcasters rely heavily on Justice Stevens’s
opinion in 44 Liquormart. Justice Stevens contended that Rhode
Island could satisfy the third Central Hudson prong only on an
evidentiary showing that the price advertising ban would
significantly reduce alcohol consumption. His approach, however,
did not command majority support on the Court and, viewed in the
context of that case, does not alter this facet of the Central
Hudson standard. The state was using a speech restriction to
influence consumption indirectly by affecting liquor prices rather
than either using a speech regulation directly to shrink the demand
for liquor or by simply regulating its price. The connection
between the speech regulation and state policy was not “direct.”
Indeed, 44 Liquormart does not disturb the series of decisions that
has found a commonsense connection between promotional advertising
and the stimulation of consumer demand for the products advertised.
See, e.g., Central Hudson, 447 U.S. at 569, 100 S. Ct. at 2353
(finding “an immediate connection between advertising and demand
for electricity”).
Having sketched both this court’s previous opinion and 44
Liquormart, we turn to the remand.
To the extent that the Court’s remand provides a general
opportunity to reconsider our opinion, it must be noted that the
Ninth Circuit in Valley Broadcasting Co. v United States, 107 F.3d
1328 (9th Cir. 1997), agreed with the dissenter in this case and
8
concluded that § 1304 could not materially advance the government’s
interest in discouraging casino gambling. The Ninth Circuit relied
upon an exception in § 1304 that expressly permits broadcast
advertising for Indian-operated casino gambling, as well as
exceptions that permit similar promotion of state lotteries and
local charitable gambling,8 and found these provisions as
inconsistent with the government’s asserted interests as the
alcohol strength regulation at issue in Rubin. The Ninth Circuit’s
point derives not from 44 Liquormart, but from Rubin, a decision we
distinguished in the prior majority opinion. See Valley Broad.,
107 F.3d at 1334-36.
We remain persuaded, for the reasons stated in our
previous opinion, that Rubin does not compel the striking down of
§ 1304. The government may legitimately distinguish among certain
kinds of gambling for advertising purposes, determining that the
social impact of activities such as state-run lotteries, Indian and
charitable gambling include social benefits as well as costs and
that these other activities often have dramatically different
geographic scope. That the broadcast advertising ban in § 1304
directly advances the government’s policies must be evident from
the casinos’ vigorous pursuit of litigation to overturn it. See
Posadas, 478 U.S. at 342, 116 S. Ct. at 2977 (“[T]he fact that
8
See supra note 5.
9
appellant has chosen to litigate this case all the way to this
Court indicates that appellant shares the legislature’s view.”)
(citing Central Hudson, 447 U.S. at 569, 100 S. Ct. at 2353).
There is also no doubt that the prohibition on broadcast
advertising reinforces the policy of states, such as Texas, which
do not permit casino gambling. Further, as previously noted, the
Supreme Court rejected in Edge the contention that permitting other
forms of media to advertise certain types of gambling undercuts the
government’s policy interests. See Edge, 509 U.S. at 433-34, 113
S. Ct. at 2707; accord Central Hudson, 447 U.S. at 569, 100 S. Ct.
at 2353; Dunagin v. City of Oxford, 718 F.2d 738, 747-51 (5th Cir.
1983) (en banc); see also Anheuser-Busch, Inc. v. Schmoke, 63 F.3d
1305, 1313-14 (4th Cir. 1995), opinion on remand from Supreme
Court, 101 F.3d 325 (4th Cir. 1996). We would be acting more out
of a hunch that we were wrong on Rubin than compulsion based on 44
Liquormart if we were now to revise our third prong Central Hudson
analysis.
After 44 Liquormart, however, the fourth-prong
“reasonable fit” inquiry under Central Hudson has become a tougher
standard for the state to satisfy. Little deference can be
accorded to the state’s legislative determination that a commercial
speech restriction is no more onerous than necessary to serve the
government’s interests. Posadas has been discredited to this
10
extent.
The government still contends, however, that a ban on
broadcast advertising for casino gambling is no more extensive than
necessary to serve its interests in reducing public participation
in commercial gambling and in back-stopping the policies of anti-
gambling states. While not limiting its argument to the full scope
of social ills historically associated with gambling,9 the
government’s remand brief focuses on the broadcast advertising
restriction as an effective means to counteract compulsive
gambling. Unfortunately, the government’s assertions concerning
compulsive gambling, intuitively sensible though some of them are,10
9
The social problems encompass rises in organized crime,
violence, embezzlement, fraud, see, e.g., Valley Broad., 107 F.3d
at 1332, petty theft, employment problems, bankruptcy, depression,
suicide, and family troubles, including debt burdens, financial and
emotional neglect, abandonment, and divorce, see National Gambling
Impact and Policy Commission Act: Hearings on H.R. 497 Before the
Comm. on the Judiciary, 104th Cong. (Sept. 29, 1995) [hereinafter
1995 Hearings] (statement of Senator Richard G. Lugar), available
in 1995 WL 572923; id. (statement of Congressman Frank R. Wolf),
available in 1995 WL 572926; id. (statement of Paul Ashe, President
of National Council on Problem Gambling), available in 1995 WL
572924; Blaine Harden & Anne Swardson, Addiction: Are States
Preying on the Vulnerable?, Wash. Post, March 4, 1996, at A1; see
also Posadas, 478 U.S. at 341, 106 S. Ct. at 2976-77 (“‘[e]xcessive
casino gambling among local residents . . . would produce serious
harmful effects on the health, safety and welfare of the Puerto
Rican citizens, such as the disruption of moral and cultural
patterns . . . .’”).
10
See Appellees’ Supplemental Brief at 11. Affecting senior
citizens, see, e.g., Dan Herbeck, Gambling Stakes Can Be High for
Senior Citizens, Buff. News, Feb. 8, 1998, at A1, adults, and
children alike, see, e.g., Art Levine, Playing the Adolescent Odds,
U.S. News & World Rep., June 18, 1990, at 51, compulsive gambling
11
has been described by the American Psychiatric Association as a
“‘disorder of impulse control,’” Ruth Benedict, Council Prepares to
Treat Compulsive Gamblers, Crain’s Det. Bus., Jan. 13, 1997, at 10;
see also Harden & Swardson, supra note 9 (noting that Harvard
Psychology Professor Howard Shaffer has found that gambling alters
the chemistry of the brain and affects the central nervous system
much like a drug). Although compulsive gamblers represent a small
percentage of the gambling community, they are responsible for a
disproportionate share of industry revenue. See Harden & Swardson,
supra note 9 (conservative estimate that compulsive gamblers
contribute twenty-five percent of casino revenue). Moreover, a
recent study by Harvard Medical School concluded that the number of
compulsive gamblers living in the United States and Canada is
rising, having grown by 1.6 million adults in the last two decades.
See Derrick DePledge, Betting the next Roll Wins Study: Gamblers’
Odds of Addiction Rising, Fla. Times Union, Dec. 23, 1997, at C1.
The study estimated total number of compulsive gamblers at 3.8
million. See id.
Experts attribute these rising numbers to the growing
acceptance of gambling within America’s entertainment culture,
where casinos advertise as family resorts filled with the glamour
and allure of easy millions. See id. (quoting Professor Shaffer).
Short of prohibiting gambling altogether, limiting broadcast
messages about casino gambling may indeed be one of the most
effective methods of limiting a compulsive gambler’s exposure to a
lifestyle that can be as irresistible as it is socially
destructive. See, e.g., William Safire, A Gambling Lesson: There’s
Now a Sucker Born Every Second, Dallas Morning News, June 6, 1998,
at 11A (“[M]any psychiatrists suggest[] that a significant number
of gamblers . . . were encouraged in their addiction by the lure of
casino advertising.”); see Harden & Swardson, supra note 9 (noting
that the increased availability of gambling is fueling the
addiction).
Compulsive gamblers often suffer from financial hardship,
emotional difficulties, including alcoholism, depression, stress-
related diseases, and suicide attempts. See also Harden &
Swardson, supra note 9; Problem Gamblers, Rolling the Dice with
their Lives, Buff. News, June 25, 1996, at C1. Moreover, experts
estimate that the trouble of each compulsive gambler affects the
lives of ten to seventeen people. See, e.g., Gordon Johnson,
Everybody Loses, Press-Enterprise, Jan. 25, 1998, at D1. Very
often, the gambler’s loved ones must endure emotional turmoil,
financial neglect, abuse, and divorce. Studies also suggest that
children of compulsive gamblers perform worse academically, are
more likely to become alcoholics, develop gambling problems
12
raise numerous fact issues at a belated stage of this litigation.
The government’s new argument suffers fatally, however, because
none of its sources specifically connect casino gambling and
compulsive gambling with broadcast advertising for casinos. If the
government’s burden were to establish a direct, quantitative
evidentiary link among these phenomena, we do not believe it has
done so. But 44 Liquormart, though more demanding on the fourth
prong of Central Hudson, does not appear to establish an
insurmountable test.
The federal government’s policy toward legalized gambling
is consciously ambivalent. What began as a prohibition on all
interstate lottery advertising has been successively, but gingerly
modified to respect varying state policies and the federal
government’s encouragement of Indian commercial gambling. The
remaining advertising limits reflect congressional recognition that
gambling has historically been considered a vice; that it may be an
themselves, develop eating disorders, experience periods of
depression, and attempt suicide. See Appellees Supplemental Brief
at 13-14 (citing Douglas A. Abbot et al., Pathological Gambling and
the Family: Practice Implications, 76 Fam. Soc. 213, 216-17 (1995);
Mark Dickerson, Gambling: A Dependence without a Drug, 1 Int’l Rev.
Psych. 157, 162 (1989); Durand F. Jacobs et al., Children of
Problem Gamblers, 5 J. Gambling Behav. 261 (1989)). One observer
concluded that in some respects, the harm a compulsive gambler
inflicts upon his children and his family is really much greater
than an alcoholic or drug addict. See Harden & Swardson, supra
note 9.
13
addictive activity;11 that the consequences of compulsive gambling
addiction affect children, the family, and society;12 and that
organized crime is often involved in legalized gambling.13
In both Edge and Posadas, federal and territorial
governmental decisions to discourage certain types of gambling,
while couched in ambivalence similar to that contained in § 1304,
were nevertheless regarded as justifiable. Moreover, in Edge, the
restriction on broadcasting by a non-lottery-state station was
upheld despite the fact that over ninety percent of the station’s
listeners lived in a state where the lottery is legal. The Court
was persuaded that controlling access to broadcast lottery
advertising by thousands of local North Carolina households
furthered North Carolina’s anti-lottery policy. See Edge, 509 U.S.
at 428-30, 113 S.Ct. at 2704-05.
A direct inference from Edge would therefore be that if
11
See, e.g., 1995 Hearings, supra note 9 (statement of Paul
Ashe, President of National Council on Problem Gambling) (noting
that the American Medical Association recognized pathological
gambling as an addiction in 1994); see also Harden & Swardson,
supra note 9 (“Gambling researchers and psychotherapists agree that
the increased availability of legal gambling is fueling increased
addiction.”).
12
See, e.g., Brett Pulley, Those Seductive Snake Eyes: Tales
of Growing Up Gambling, N.Y. Times, June 16, 1998, at A1
(discussing the social problems stemming from the proliferation of
youth gambling); Harden & Swardson, supra note 9.
13
See, e.g., Valley Broad., 107 F.3d at 1332 (discussing
hearings before President’s Commission on organized crime).
14
the federal government may pursue a cautious policy toward the
promotion of commercial gambling, then it may use one means at its
disposal -- a restriction on broadcast advertising14 -- to control
demand for the activity. Further, it may do so even though the
restriction will “deprive” the casinos of their opportunity to
reach potential customers by one method of advertising in states
where they legally operate.
44 Liquormart does not undercut this reasoning. The
blanket ban on price advertising there was viewed as too great an
imposition on speech because it was (a) comprehensive and (b) an
indirect, imperfect tool for manipulating prices compared with
alternative direct policies such as minimum prices or taxation.
By these tests, § 1304 cannot be considered broader than
necessary to control participation in casino gambling. First,
there is no blanket ban on advertising. The ban is more analogous
to a time, place and manner restriction. Other media remain
available, such as newspapers, magazines and billboards, and indeed
broadcast advertising of casinos, without reference to gambling, is
permitted. Section 1304 simply targets the powerful sensory appeal
of gambling conveyed by television and radio, which are also the
most intrusive advertising media, and the most readily available to
children. Second, regulation of promotional advertising directly
14
It is postulated that advertising stimulates demand.
15
influences consumer demand, as compared with the indirect market
effect criticized in 44 Liquormart. Moreover, the efficacy of non-
advertising-related means of discouraging casino gambling is purely
hypothetical, as such measures would have to compete with the
message of social approbation that would simultaneously be conveyed
by unbridled broadcast advertising. Section 1304, in short, is
tailored to fit the statutory purpose of controlling demand and
does not unduly burden speech.
The government also defends the nationwide prohibition of
this advertising as necessary to enforce the policies of non-casino
-gambling states like Texas. The broadcasters view this
restriction as overbroad and assert that only an Edge-like
compromise, whereby broadcasters in pro-gambling states could
advertise their casinos while non-gambling-state broadcasters could
not do so, is constitutionally mandated by the narrow tailoring
test. Perhaps the Supreme Court will see it this way; or perhaps
the Supreme Court will overrule Edge as inconsistent with its cases
in the ensuing five years. But 44 Liquormart does not provide any
basis for reaching such results, and the broadcasters have
identified no non-speech-related alternatives to § 1304 as a means
of assisting anti-gambling states. If § 1304 can be upheld on the
basis of protecting the non-gambling states, then it is reasonable
for the broadcast ban to be nationwide in effect. As Edge stated,
and we earlier noted,
16
In response to the appearance of state-sponsored
lotteries, Congress might have continued to ban all radio
or television lottery advertisements, even by stations in
States that have legalized lotteries.
509 U.S. at 428, 113 S. Ct. at 2704. Central Hudson, as applied
after 44 Liquormart, does not inhibit all legislative flexibility
in confronting challenging social developments.
Moreover, if this remand opinion is wrong, and § 1304 is
invalidated, there will be no federal protection for non-casino-
gambling states, and their citizens will be subject to the
influence of broadcast advertising for privately owned casinos.
This is not a neutral position; it is one that effectively awards
federal sanction to an activity that is again coming to be viewed
with moral and utilitarian suspicion.15 Historically, state and
local government policies toward legalized gambling have oscillated
between prohibition and regulated legalization, as the social
problems gambling stimulates have risen and fallen. What is needed
is legislative flexibility, so that the people’s representatives
can respond to the varying consequences of legalized gambling. If
court decisions decree unbridled advertising of “truthful, non-
misleading speech” however, the legislature’s flexibility will be
impaired. In the case of gambling, the consequences may be stark:
whatever is legal may be advertised; only a prohibition of gambling
will justify a ban on advertising. More disturbing, whatever
15
See supra notes 9-13.
17
gambling is legal anywhere may be advertised everywhere. No local
prohibition of gambling will be meaningful, and communities will be
less capable of insulating themselves and their children from the
deleterious influence of gambling. Doctrinal rigidity in this type
of case would seem to be the enemy of federalism, of flexible
representative government, and of peoples’ right to make choices to
protect their community and their children. Central Hudson, as
applied after 44 Liquormart, does not totally foreclose such
flexibility.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
ENDRECORD
18
POLITZ, Chief Judge, dissenting:
Having concluded previously that the federal ban on
broadcast advertisement of casino gambling fails to
satisfy the requirements of Central Hudson,16 the stricter
standard employed by the Supreme Court in 44 Liquormart17
only strengthens my convictions. Thus, for the reasons
assigned in my prior dissent, I must continue to
dissent.18
The failure of the Justices to reach an agreement in
44 Liquormart about the specifics of the parameters of
the constitutional review to be applied to commercial
speech restrictions deprives the lower courts of the
16
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of
New York, 447 U.S. 557 (1980).
17
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
18
Greater New Orleans Broadcasting Ass’n, Inc. v. United
States, 69 F.3d 1296, 1303 (5th Cir. 1995) (Politz, C.J.,
dissenting).
19
guidance a coherent, dispositive framework would have
provided for evaluating these claims. The divergent
analyses unnecessarily blur the boundaries of commercial
speech.
A close reading of 44 Liquormart discloses, however,
that a majority of the Court felt strongly that truthful
commercial speech about lawful services should enjoy
greater first amendment protections than that previously
afforded. It appears manifest that the Court will no
longer defer to “legislative judgment,” grant “broad
discretion” for “paternalistic purposes,” accept the
“greater-includes-the-lesser” reasoning, or defer to the
“vice” exception.19 Read together, the opinions in 44
Liquormart teach that the government must use direct
methods of controlling disfavored behavior. This,
combined with the heavy burden of proof that is now
placed on the government, substantially undercuts the
validity of laws, such as the statute at issue here,
which restrict nondeceptive commercial information.
19
44 Liquormart, 517 U.S. 484.
20
If not so viewed previously, it must now be
recognized that the statutory advertising proscription at
bar herein simply fails to advance directly the
government’s asserted interests and, accordingly, must be
deemed overbroad under the heightened standards of 44
Liquormart. The numerous exceptions and inconsistencies
contained in the publication ban abundantly undermine and
are adverse to the asserted government interests,
precluding the material advancement thereof.20 In
addition, given the many exceptions, the government has
totally failed to meet its burden of proving that a
nationwide ban is mandated.
I respectfully dissent.
20
Greater New Orleans Broadcasting Ass’n, 69 F.3d at 1304.
See also Valley Broadcasting Co. v. United States, 107 F.3d 1328
(9th Cir. 1997), cert. denied, 118 S.Ct. 1050 (1998) (finding the
same ban at issue here to violate the first amendment after 44
Liquormart because of the numerous exceptions).
21
Greater New Orleans v. United States
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-07-30
Citations: 185 F.3d 917
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