For those of us who cleave to the fundamental belief that Supreme Court decisions govern application of constitutional law, some of 1998's commercial speech cases were the source of puzzlement, verging on incredulity.
In the face of the substantially unanimous results in the Court's most recent commercial speech decisions, Rubin and 44 Liquormart, those cases were routinely disregarded or distinguished into thin air by trial courts.
The net result was a uniquely mixed bag of lower court decisions during the year. We were also left with a concern about how long the Supreme Court will let this cacophony continue.
1998: The Old Year
Three challenges to the federal ban on broadcast advertising of casinos and other gaming activities provided a crystal clear example of this disjunction in application of the Supreme Court's Central Hudson test, progressively strengthened by the Court during the 1990s:
Valley Broadcasting. Certiorari was denied early in the year, leaving in place the Ninth Circuit's proper application of the Central Hudson test and its holding that Part 3 of the test ("direct and material advancement") could not be met by a statute so riddled with exemptions from its ban that it was irrational - in effect, a statute at war with itself - and thus incapable of advancing Congress's stated goals as applied to advertising of legal casinos in Nevada. The Ninth Circuit correctly relied on the Central Hudson Part 3 analysis of the Supreme Court in Rubin.
Players International. A federal district court reached the same conclusion in a challenge to the federal broadcasting ban in New Jersey. Here, the court ruled not only that Part 3 had not been met under Rubin, but also that the statute failed Central Hudson Part 4 ("no more extensive than necessary"). Players presently is on appeal to the Third Circuit.
In a highly unusual 1998 petition for certiorari, the solicitor general asked the Supreme Court to take Players, even before argument to the Third Circuit, ostensibly because it has a better developed factual record than either Valley or Greater New Orleans. This was denied on Jan. 11, 1999.
