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Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico

Supreme Court of the United States · 1986 · Constitutional Law

Constitutional LawFirst AmendmentCommercial SpeechDue ProcessEqual Protectioncommercial speechcasino advertisingPuerto Rico

Facts

Puerto Rico legalized certain casino gambling to promote tourism but prohibited gambling rooms from advertising or otherwise offering their facilities to the public of Puerto Rico. Tourism Company regulations implemented that ban, and the Tourism Company fined appellant casino operator Posadas for various uses of the word "casino" in materials accessible to the public in Puerto Rico. Posadas sought declaratory relief, claiming the statute and regulations violated the First Amendment, due process, and equal protection. The Puerto Rico Superior Court found the prior administrative application arbitrary, adopted narrowing constructions limiting the ban to advertising aimed at Puerto Rico residents, and upheld the law as facially constitutional as so construed.

Issue

Whether Puerto Rico's statute and regulations restricting casino gambling advertising aimed at Puerto Rico residents, as narrowed by the Puerto Rico Superior Court, facially violate the First Amendment's protection of commercial speech or the Constitution's due process or equal protection guarantees. A preliminary issue was whether the Supreme Court had jurisdiction to review the Puerto Rico Supreme Court's dismissal.

Rule

Truthful, nonmisleading commercial speech about lawful activity may be restricted under Central Hudson only if the government has a substantial interest, the restriction directly advances that interest, and the restriction is no more extensive than necessary. In reviewing facial constitutionality, the Court must accept the narrowing constructions given by Puerto Rico courts. Where the government could completely prohibit the underlying activity, the Court stated that the greater power to ban the activity includes the lesser power to ban advertising of it.

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

Nevada legalizes a new form of in-person sports wagering at resort lounges in Reno and Las Vegas, but a state statute bars paid advertisements for those lounges when directed to Nevada residents while allowing tourism-focused ads aimed at out-of-state visitors. Desert Crest Gaming challenges the law after being fined for resident-targeted radio spots in Carson City.

If the ads are truthful and concern lawful activity, which is the strongest basis for upholding the statute under the majority's approach?

Explanation. Under the majority's application of Central Hudson, truthful commercial speech about lawful activity may still be restricted if the government has a substantial interest, the restriction directly advances that interest, and the fit is adequate. Protecting residents' health, safety, and welfare by reducing demand for a harmful but lawful activity is a substantial interest. The majority did not say commercial speech gets no protection, nor did it require proof of already realized harm as a prerequisite.