Greater New Orleans Broadcasting Association. This case, upholding application of the same federal broadcast ban to advertising of legal casinos in Louisiana, was originally decided before 44 Liquormart, and was GVR'd by the Supreme Court after 44 Liquormart for reconsideration in light of that decision. After a long delay, the Fifth Circuit restated its earlier conclusions by the same 2-1 panel majority.
In essence, the majority held that because gambling was a vice, regulation of its advertising was entitled to greater deference under the First Amendment - a distinction specifically rejected by the Supreme Court in Rubin and 44 - and also held that the government's burden could simply be met by presumptions without actual evidence.
Judge Edith Jones wrote both the earlier and second opinions of the panel and purported to distinguish not just 44 Liquormart but also Rubin, and the Ninth Circuit's squarely contrary result. A clearer example of an explicit doctrinal split among the circuits can scarcely be imagined, and Greater New Orleans petitioned for certiorari.
Tobacco advertising shared the commercial speech spotlight during 1998, and will continue to do so in 1999. Separate articles in this edition discuss cases applying federal preemption tests to billboard ordinances regulating tobacco advertising and discuss the final tobacco settlement with the states. From the First Amendment perspective, the "mixed bag" results of 1998 were sharply etched in the tobacco advertising disputes.
First, there were several non-First Amendment developments:
Brown & Williamson v. FDA. The Fourth Circuit did not address First Amendment arguments presented in the trial court attacking the constitutionality of the FDA's draconian limitations on tobacco advertising, and instead held that Congress had not given the FDA jurisdiction over tobacco and tobacco products. Review on appeal did not reach the district court's decision that the FDA did not have authority over tobacco advertising.
The National Tobacco Debate. The health lobby, the states, the Administration, Congress, and the tobacco companies seemed close to a global settlement in late spring, but the deal fell apart in Congress. However, the states were unwilling to see the settlement concept die and a so-called "master settlement" was reached last fall. Those limitations on tobacco advertising were less sweeping than either the FDA's proposed rules or the restrictions in several earlier bills in the spring round of negotiations in Congress.
