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Greater New Orleans Broadcasting Ass'n, Inc. v. United States

Supreme Court of the United States · 1999 · Constitutional Law

Constitutional LawFirst AmendmentCommercial Speechcommercial speechFirst Amendmentcasino advertisingbroadcast regulation18 U.S.C. § 1304

Facts

Petitioners were Louisiana radio and television broadcasters who wanted to air promotional advertisements for lawful private for-profit casinos in Louisiana and Mississippi. Federal law, 18 U.S.C. § 1304, together with an FCC regulation, barred broadcast advertising of such casino gambling. At the same time, federal law exempted various other gambling advertisements from the ban, including ads for tribal casino gambling, government-operated gambling, nonprofit gambling, and certain occasional commercial gambling promotions. Some Louisiana broadcasts could be heard in neighboring States where private casino gambling was unlawful.

Issue

Whether 18 U.S.C. § 1304 and the FCC's implementing regulation may constitutionally be applied to prohibit Louisiana broadcasters from airing truthful, nonmisleading advertisements for lawful private casino gambling in Louisiana and Mississippi. More specifically, the question was whether the restriction satisfied the Central Hudson standard for commercial speech.

Rule

Under Central Hudson, truthful and nonmisleading commercial speech about lawful activity may be restricted only if the Government identifies a substantial interest, and the restriction directly and materially advances that interest and is not more extensive than necessary to serve it. The Government bears the burden of justification, and a restriction cannot stand when the regulatory scheme is riddled with exemptions and inconsistencies that undermine direct advancement and reasonable fit.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A television station licensed in Biloxi, Mississippi wants to run ads for Gulf Lantern Casino, a privately owned casino lawfully operating under Mississippi law. The proposed ads accurately describe the casino's location, hours, and payout rules, but they also falsely claim that state regulators guarantee every patron will leave with more money than they arrived with.

If the station challenges a federal broadcast restriction on these ads under the majority's approach, what is the best threshold conclusion?

Explanation. The majority began with Central Hudson step one: commercial speech is protected only if it concerns lawful activity and is not misleading. The Court treated truthful, nonmisleading ads for lawful casino gambling as protected. Here, although the underlying casino is lawful, the ad includes a false guarantee of profit, making the message misleading. That means the speaker cannot rely on the case's protection for truthful, nonmisleading speech.