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Agency Beat:

Regulatory Beat: Court Watch:

Casino Advertising: Continued

  • Players International Inc. v. United States. The latest challenge to the federal lottery broadcasting ban is pending in the federal district court in New Jersey--which, like Nevada and Louisiana, is a state in which casino gambling is legal.

    The First Amendment basis for plaintiffs' challenge is similar to the challenges in Valley and Greater New Orleans, with additional arguments because of the now-clear requirement for a "level playing field" in all categories of commercial speech by both Rubin and 44 Liquormart. The federal opposition to plaintiffs' motion for summary judgment in Players was filed on April 10. Among other assertions, the government:

    • Claimed that reducing advertising reduces consumption--ipso facto and without need of proof, citing the Baltimore billboard cases and the reversed Fifth Circuit decision in Greater New Orleans.
    • For the first time purported to link the government's newly discerned class of "vulnerable" compulsive gamblers, first proposed in Greater New Orleans, with an alleged misuse of alcohol beverages in casinos, and also made the mind-boggling assertion that "gambling addiction is particularly significant among children"--thus incorporating the government's favorite excuse for dispensing with the First Amendment.
    • Claimed that television advertising is particularly "pervasive," and that reasonable alternatives to the blanket advertising ban, such as education programs, would be "ineffective."
    In short, in gaming terminology, the three pending gambling cases show the government's evolving "hand" --in which its "hole card" is obviously an attempt to protect wide latitude for regulation of commercial speech and to resuscitate the deferential Posadas rule by:

    • Hyping denial of certiorari in the Baltimore billboard cases into a substantive "wink" by the U.S. Supreme Court, allegedly limiting the reach of 44 Liquormart.
    • Arguing that Central Hudson Part 3 ("directly advancing") can be met by a presumption that lowering advertising reduces consumption, and that Part 4 ("reasonable fit") can be met even by an internally inconsistent regulatory scheme, citing Edge Broadcasting--in spite of specific holdings to the contrary in Rubin and 44 Liquormart.
    • Touting a supposed "vulnerable" class of "compulsive gamblers," allegedly linked to another vulnerable class of supposed underage gambling "prospects," attempting to show that "special solicitude" under Central Hudson, Part 2, dissolves (or at least reduces) the government's evidentiary burden under Parts 3 and 4 of Central Hudson.

    First Amendment counsel will be maintaining close surveillance of the gambling cases as they evolve as the next and most important chapter in development of the commercial speech doctrine.

    Quite clearly, the government is using these cases as a testing ground for all of its current commercial speech theories, trying to provide itself with the broadest possible base for the next application of Central Hudson by the U.S. Supreme Court.

    P. Cameron DeVore, a partner in the Seattle office of Davis Wright Termaine, is Chair of the firm's Communications and Media Law Department. He regularly represents the media and national advertisers in major First Amendment cases in the U.S. Supreme Court, and federal and state trial and appellate courts.

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    • Coyne Beahm, Inc. v. United States, #2: 95CV00591, 1997 U.S. Dist. LEXIS 5453 (M.D.N.C. April 25, 1997).

    Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325 (4th Cir. Nov. 13, 1996) ( No. 94-1431), cert. denied, 1997 U.S. LEXIS ____ (April 28, 1997).

    Penn Advertising of Baltimore, Inc. v. Schmoke, 101 F.3d 332 (4th Cir. Nov. 13, 1996) (No. 94-2141), cert. denied, 1997 U.S. LEXIS 2792 (April 28, 1997).

    44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).

    Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995).

    Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986).

    United States v. Edge Broadcasting, 509 U.S. 418 (1993).

    Valley Broadcasting Co. v. United States, __ F3d __, 1997 WL 76254 (9th Cir. Feb. 25, 1997), petition for rehearing and rehearing en banc filed (April 11, 1997).

    Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

    Edenfield v. Fane, 507 U.S. 761 (1993).

    Greater New Orleans Broadcasting Ass'n v. United States, 69 F.3d 849 (5th Cir. 1995), cert. granted, vacated, and remanded (GVR'd), __ S. Ct. __.

    Players International Inc. v. United States, Civil Action No. 96-4911 (D.N.J. 1997).

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