Inside On the Circuit Court Upholds Restriction on Attorney Solicitation - David L. Hudson, Jr. FDA Denied Authority To Regulate Tobacco, Ads - Daniel E. Troy Anti-Blockbusting Law Unconstitutional - Richard M. Schmidt, Jr. and Kevin Goldberg Judicial Beat: Medical Reprints Seen as ComSpeech - Robert M. O'Neil WLF Decision Will Benefit Consumers - John Kamp Judicial Beat: FTC Questions Alcohol Marketers Judge Kozinski Sees Hope for ComSpeech - David L. Hudson Billboard Bans — NYC Decision Expected Different Rulings on Bus Ads Editorial Board/Information Staff/Contact Info

Casinos continued "What is needed is legislative flexibility.... If court decisions decree unbridled advertising of ‘truthful, non-misleading speech" however, the legislature's flexibility will be impaired. In the case of gambling, the consequences may be stark: whatever is legal may be advertised; only a prohibition of gambling will justify a ban on advertising. More disturbing, whatever gambling is legal anywhere may be advertised everywhere." Reading that endorsement of majoritarian government, one is reminded of Justice Brennan1s famous retort to the Chief Justice's "strange doctrine" dictum in Posadas in which the Chief expressed the view that the "greater" power to completely ban an activity includes the "lesser" power to ban advertising of that activity. The fly in Judge Jones's "legislative flexibility" ointment is what Justice Brennan pointed out in his Posadas dissent Ð the First Amendment. The Supreme Court now has the opportunity in GNOBA II to do for Part 3 what 44 Liquormart did for Part 4. If the Central Hudson test is to remain the standard, the Court will have (on the GNOBA II record) a clear-cut basis to take Edenfield's command that the government's burden "is not satisfied by mere speculation or conjecture" a step further. The Court can declare that proof of "direct and material advance" under Part 3 requires the presentation by the government in the courtroom of evidence, subject to the usual rigors of cross-examination, impeachment, and rebuttal Ð not irrebuttable presumptions based on an unproven theory about the effect of advertising and the reasons why advertisers mount constitutional challenges. John J. Walsh is a partner in the firm of Cadwalader, Wickersham & Taft in New York. Greater New Orleans Broadcasting Ass'n v. United States, 149 F.3d 334 (5th Cir. 1998) ("GNOBA II"). Greater New Orleans Broadcasting Ass'n v. United States, 69 F.3d 849 (5th Cir. 1995), cert. granted, vacated, and remanded, 117 S. Ct. 39 (1996) ("GNOBA I"). Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980). Valley Broadcasting v. United States, 107 F.3d 1328 (9th Cir. 1997). Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986). United States v. Edge Broadcasting, 509 U.S. 418 (1993). Anheuser-Busch, Inc. v. Schmoke, 116 S. Ct. 1821 (1996), reaff'd, 101 F.3d 325 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997). 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995). Edenfield v. Fane, 507 U.S. 761 (1993). return to first page of this article continue to next article

Return to the Commercial Speech Digest Home