Casino Advertising: Continued
The court held that "the government has failed to provide any evidence demonstrating...
that 'its restrictions will in fact alleviate [the asserted harms] to a material degree.'"
citing Edenfield and Rubin. The court based its conslusion entirely on Part 3
and concluded that it "need not reach the final prong of Central Hudson."
On April 11, the United States petitioned for rehearing and rehearing en banc in Valley
, frontally attacking the panel's reliance on Rubin which it purported to distinguish, and arguing
that the panel should have remanded the case to the district court for evidentiary hearing regarding the
"distinguishable" impact of advertising for Indian gambling.
Picking up the earlier federal arguments in the Greater New Orleans case, below, the petition also
argued that Edge Broadcasting undercut the panel's conclusion that the broadcast ban statute was underinclusive,
and quoted Edge's statement that "we do not require that the Government make progress on every front before it
can make progress on any front."
Astonishingly, the petition also argued that a similar expression in Posadas continued to be governing authority
because "in that respect Posadas remains good law."
Greater New Orleans Broadcasting Ass'n v. United States. On Oct. 7, 1996,
the Supreme Court granted certiorari, vacated, and remanded for further consideration in light of
44 Liquormart the Fifth Circuit's blessing of the federal broadcasting ban to forbid advertising
of Louisiana's legal casinos.
In the wake of the Ninth Circuit decision in Valley, that case was filed with the Fifth Circuit
as a supplemental authority. Then, on April 11, the United States wrote the Fifth Circuit that
"the government [filed] a petition for rehearing...in Valley."
The letter also said it would be "appreciated" "if this letter [would be brought] to the attention of
the panel hearing this appeal as quickly as possible. The government is prepared to lodge copies of
the rehearing petition in Valley Broadcasting if the panel wishes us to do so."
The original 1995 decision in Greater New Orleans was 2 to 1 to uphold the statute. Thus, it is
obvious that the government is "pulling out the stops" to attempt to "save" its 1995 victory and to
correct its failure to make a factual record in either Valley or Greater New Orleans
adequate to meet its burden of proof under Central Hudson Parts 3 and 4, now that Posadas
is no longer a viable authority. Posadas was the centerpiece of the Fifth Circuit's 1995
decision.
In any event, both Valley and Greater New Orleans are relatively close to a final decision
in their respective circuits, and it appears quite likely that petitions for certiorari will
be filed in both cases. The petitions would be particularly compelling if the final results are inconsistent
between the circuits.
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