High Court Denies Certiorari in Valley Broadcasting

By P. Cameron DeVore

On Feb. 23, the U.S. Supreme Court denied without comment the federal petition for certiorari from the 1997 decision of the Ninth Circuit in Valley Broadcasting Co. v. United States which held that the federal broadcast ban on gambling advertising in 18 U.S.C. § 1304 was impermissibly applied to television commercials about legal Nevada casino gambling. The federal cert. petition, filed on Dec. 22, 1997, had asked narrowly that review be granted for the sole purpose of vacation of the Ninth Circuit judgment, and remand of the case for further evidentiary hearings before the federal district court in Nevada.

The National Association of Broadcasters, Association of National Advertisers, and American Association of Advertising Agencies filed an amicus brief supporting the brief in opposition to certiorari filed by Valley Broadcasting. The respondent’s brief and the amicus brief both argued not only that such a remand — ostensibly based on intervening changes made by the Supreme Court in commercial speech doctrine — would be unprecedented, but that the Ninth Circuit’s decision in the case was an entirely correct and routine application of Central Hudson, as enhanced by later Supreme Court decisions (e.g., Edenfield, Coors, 44 Liquormart).

This latest setback to the government’s long-running strategy of attempting to preserve maximum legislative leeway to restrict or ban commercial speech followed closely on the decision of a federal district court in New Jersey on Dec. 19, 1997, upholding — in part based on the Ninth Circuit decision in Valley — a similar challenge to the constitutionality of the federal broadcast ban as applied to advertising of legal casinos in New Jersey.

Building on their December victory, the Players International plaintiffs promptly asked Judge Joseph Rodriguez in the New Jersey district court to enjoin application of the statute nationally. Oral argument to the court took place on April 1, and all reports indicate that the judge was deeply skeptical about the government’s argument. He reiterated his observation that, if the government’s interests were so substantial, it should choose to regulate the conduct, and not speech about the conduct. Government counsel downplayed denial of cert. in Valley by arguing that the denial was most likely based solely on the procedural remand issue. No one familiar with the certiorari review process by the U.S. Supreme Court could give much, if any, credence to that argument.

In the same vein, the Fifth Circuit has still not come up for air and responded to the Supreme Court’s vacation, in the wake of 44 Liquormart, of Greater New Orleans Broadcasting Association v. United States. Counsel for GNOBA promptly filed with the circuit a copy of the New Jersey decision in Players International as a supplemental authority. Also, on March 29, counsel for the Mississippi Association of Broadcasters, whose challenge to application of the federal broadcast ban in Mississippi was stayed by the U.S. District Court for the Southern District of Mississippi on June 15, 1995, pending a decision in Greater New Orleans, filed a motion with that district court to vacate its stay, in light of the subsequent decisions in 44 Liquormart, Valley, and Players International.

In short, the federal government’s rear-guard actions to protect its gambling advertising ban — and its crabbed view of the commercial speech doctrine — continue to come under heavy fire in several jurisdictions.

Valley Broadcasting Co. v. United States, 107 F.3d 1328 (9th Cir. 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).

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

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

Players Int’l, Inc. v. United States, No. 96-4911 (D.N.J. 1997).

Greater New Orleans Broadcasting Ass’n v. United States, 69 F.3d 1296 (5th Cir. 1995), judgment vacated, 117 S. Ct. 39 (1996).

Mississippi Ass’n of Broadcasters v. United States, Civil Action No. 3 94-CV-365LN (S.D. Miss. 1998).