Faculty Scholarship 1994 - Present

From Posadas to Greater New Orleans: Expanding Commercial Speech Protection for the Gaming and Alcohol Industries

In the past thirteen years, the United States Supreme Court has ventured at least five times into the constitutionality of advertising restrictions for two so called vice industries: gambling and alcoholic beverages. On June 14, 1999, the United States Supreme Court, in its most recent foray into the area, ruled in Greater New Orleans Broadcasting Association, Inc. v. United States ("Greater New Orleans"), 527 U.S. 173, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999), that a federal statute and related Federal Communications Commission regulations prohibiting radio and television broadcasters from carrying advertisements about privately operated commercial casino gambling, regardless of the casino's location, violate the First Amendment. A close examination of New Orleans and its four compatriot decisions provides an interesting framework within which to view and analyze the shifting tides of First Amendment protection of commercial speech in the vice industries. That analysis demonstrates that Greater New Orleans arguably provides the most extensive First Amendment protection for such advertisements, and that the United States Supreme Court 1) may now be willing to examine the advertising restrictions more scrupulously when the restriction seeks to achieve an end not directly related to the inherent fairness of the bargain, 2) appears to be more willing to require the government to provide evidence that the stated policy end is substantial and that the restriction being evaluated materially and directly advances the stated policy end, 3) appears to be more willing examine the regulatory landscape in which the restriction operates to make sure the restriction will not be undermined by contradictory or inconsistent policies, 4) appears to be more attentive to the existence and operations of alternative means to achieve the stated policy end to make sure the restriction being examined is sufficiently tailored to its goal, and 5) has retreated on the "greater included the lesser" reasoning. In short, it appears that United States Supreme Court has given greater First Amendment protection to commercial speech promoting gambling and alcoholic beverages. The purposes of this paper are to provide detailed analysis of the United States Supreme Court's decisions in the five key decisions, to examine how the court's application of hte Central Hudson test, the traditional framework for resolving commerical speech decisions, has evolved in favor of vice industry advertisements, and to argue that the United States Supreme Court's most recent foray into the constitutionality of restrictions on advertisements for gambling and alcoholic beverages bodes well for protection of commercial speech.