Ban as A Kind of Indirect Gambling Regulation

Federal Appeals courts are split on the constitutionality of the Act. Therefore, the ban is currently in effect in only some parts of the United States. Some jurisdictions have struck down the ban outright. For example, in Valley Broadcasting Co. v. United States, 56 the 9th U. S. Circuit Court of Appeals struck down the ban in 1998, blocking enforcement in nine Western states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. As a result of the Valley case, the FCC stated it would not enforce the ban in Nevada. 57 In Players International Inc. v. United States, 58 the U. S. District Court in New Jersey ruled that the federal ban violates the First Amendment rights of casinos and broadcasters. As a result of the Players case, the FCC stated it would not enforce the advertising ban in New Jersey, where the case had jurisdiction. 59

Other jurisdictions have upheld the ban. In Posadas de Puerto Rico Associates v. Tourism Co., 60 the U. S. Supreme Court in 1986 upheld the constitutionality of a Puerto Rico law that prohibited the advertising of casino gambling aimed at residents of Puerto Rico, but permitted such advertising aimed at tourists. In United States v. Edge Broadcasting Co., 61 the U. S. Supreme Court also upheld a federal statute that prohibited the airing of lottery advertising by broadcasters licensed in states that prohibit lotteries, while allowing such advertising by broadcasters in states where lotteries were permitted.

Is the Ban an Indirect Gambling Regulation?
Given these assumptions, the ban on gambling advertising can be interpreted as an indirect attempt to regulate people’s gambling behavior and, in turn, minimize gambling’s social costs. The interpretation of the ban as an indirect gambling regulation has led to differing arguments for and against the ban, all challenging or supporting the two underlying assumptions outlined above.

In United States v. Players International, the plaintiffs argued that a ban on gambling advertising can be interpreted as an indirect attempt to regulate people’s gambling behavior by regulating commercial speech about gambling. The main thrust of the plaintiff’s argument in Players revolved around the contention that there exist non-speech regulating “alternatives” to the broadcast ban on gambling casinos. They argued that because people’s gambling behavior can be regulated through non-speech means, then non-speech regulating policy alternatives should be considered. In short, the Players case encourages the direct regulation of people’s conduct rather than a ban on speech about that conduct, particularly when it is legal conduct. This case also questions the primary assumption that the federal government can show “any causal connection between casino gambling and the social ills that the federal government seeks to prevent.” 62

The argument supporting the ban makes similar assumptions with one major difference. Supporters of the ban assume that gambling advertising does influence (or induce) gambling behavior and that there is a causal relationship between gambling behavior and social ills. Therefore, states, in their role of protector of their citizens, need “legislative flexibility” in order to allow them to protect their citizens from the advertisement of the private gambling industry, which recruits new players and encourages new ones, thereby contributing to social ills through advertising.

56 107 F. 3D 1328 (9th Cir. 1997), cert. denied, 118 S. CT. 1050 (1998). 57 Nora FitzGerald, “Gambling Fever,” Adweek (Eastern Edition), January 26, 1998. 58 988 f. supp 497 (D. N. J. 1997). 59 FitzGerald, supra, note 52. 60 478 U. S. 328 (1986). 61 409 U. S. 418 (1993). 62 Ibid.