A second petition for certiorari filed Sept. 2 in Greater New Orleans Broadcasting Association v. United States will, if granted, offer the U.S. Supreme Court a clear cut opportunity: to determine whether the government's burden of proof under Central Hudson Part 3 can be satisfied by the "commonsense" assumption that less advertising reduces demand for a product or service.
The U.S. Court of Appeals for the Fifth Circuit relied again on that assumption in July when it upheld, on remand, a federal ban on broadcast ads for casino gambling.
The Fifth Circuit's initial decision in January 1996 affirmed the dismissal of the broadcasters' challenge to the federal statute banning radio and television advertising of commercial gambling casino operations nationwide (GNOBA I). A panel majority rejected the argument that the statutešs exceptions (e.g., Indian casino ads) "irrationally" undermined its effectiveness. In contrast, that rationale was used by the district court in Nevada to establish the unconstitutionality of the same statute under Part 3 in Valley Broadcasting.
Instead, the GNOBA I majority held: "It is axiomatic that the purpose and effect of advertising is to increase consumer demand [citing Posadas and Central Hudson]." After thus turning the "commonsense" assumption into a virtually irrebuttable presumption, Judge Edith Jones, writing for the majority, went on to add that "as noted in both Posadas and Edge, the vigor with which the statute has been challenged confirms the efficacy of the prohibition."
Thus, in GNOBA I, the government was permitted to meet its burden without evidence that the ban had a direct and material effect in reducing casino gambling, but solely by the alleged advertising/demand presumption buttressed by the strange proposition that the very act of challenging an ad ban as unconstitutional proves the banšs efficacy.
That decision led to the first petition for certiorari which was "GVR'd" by the Court (granted, the judgment vacated, and case remanded to the Fifth Circuit) with specific instructions to reconsider in light of 44 Liquormart.
