Ban on Gambling and The Greater New Orleans Broadcasters Association
Recently, in the much-discussed case of Greater New Orleans Broadcasting v. United States, 63 the 5th U. S. Circuit Court of Appeals has upheld the ban. 64 In this case, the Greater New Orleans Broadcasters Association challenged federal restrictions barring gambling advertising from crossing state lines and FCC regulations providing additional sanctions. The Federal District Court had earlier found in summary judgment that governmental interests were sufficient to override free speech concerns. The Appellate Court agreed in 1995. 65 In a 1996 ruling, the Supreme Court sent the case back to the lower courts. However, on remand, the 5th Circuit again upheld the advertising ban, precipitating the upcoming review by the Supreme Court. 66 As a result of these exceptions and contradictory decisions, “what remains of that prohibition is a vague regulatory scheme propped up by obscure, often unpublished rulings and undermined by a hodgepodge of congressionally approved exceptions.” 67 The Supreme Court recently heard the Greater New Orleans Broadcasting case and is expected to offer a decision shortly. 68
Interpretations of New Orleans
There are at least two sides to the argument about the ban on gambling advertising expressed in the New Orleans case. The American Association of Advertising Agencies argues that gambling advertising is commercial speech, protected under the First Amendment, and should not be banned or restricted. Relying on the 44 Liquormart v. Rhode Island decision, 69 in which the Supreme Court struck down a state ban on advertising the price of alcoholic beverages, they believe that the Court will find the restriction on gambling to be analogous and, therefore, unconstitutional.
The Clinton Administration continues to support the ban, arguing that there is a compelling state interest in banning gambling advertising. In an appeal of the Players case, the government attorney argued that broadcast advertising of casino gambling “would directly contribute to compulsive gambling by reaching into the homes of current and potential compulsive gamblers”. 70
While gambling advertising is generally a controversial topic, it is even more controversial when state governments themselves actively promote gambling through advertising. Running a lottery places states in a new business. Many states “have adopted the tools of commercial marketing, including product design, promotions, and advertising” to promote their lotteries. 71 In 1997 state lotteries spent a total of $400 million to advertise, about one percent of total sales. 72 Unlike many governmental promotions, which are straightforward, low-tech, and serious, lottery advertising can be characterized as persuasive, glitzy, and humorous. This attempt to make gambling attractive is sanctioned by the state, promoted by the state, and paid for by the state.
63 149 F. 3d 334 (5th Cir. 1998). 64 Richard Carelli, Law Banning Casino Ads Reviewed, AP Online, January 15, 1999. 65 Greater New Orleans Broadcasting Association v. United States, 69 F. 3d 1296 (5th Cir. 1995). 66 See Alicia Mundy, “Court Rules on Vice Ads; Supreme Court May Rule on Casino Advertising,” Adweek, August 10, 1998. 67 Argument of New Orleans Broadcasters, cited in Scott Ritter, Supreme Court Refuses to Review Ban on Casino Gaming Ads, Dow Jones Newswires, January 11, 1999. 68 Greater New Orleans Broadcasting v. United States, Supreme Court of the United States, 98-387, writ of certiorari granted, January 15, 1999. See Associated Press, Supreme Court to Consider Advertising Ban on Casinos, wire copy, January 18, 1999. 69 517 U. S. 484 (1996). 70 Richard Carelli, “Gambling Ad Ban Full of Exceptions,” AP Online, December 28, 1998. 71 Clotfelter and Cook, supra note xx at 9. 72 Patricia A. McQueen, Investing in Tomorrow, International Gaming and Wagering Business at 48 (January 1998), cited in Clotfelter and Cook, supra note xx at 11.