O n the final day of October Term 1998, the Supreme Court convincingly showed that unanimity among its members can be a fleeting thing, at least where federalism is the issue.

Yet the Court managed a remarkable display of this quality, all too rare in its commercial speech decisions, just a few days before when Greater New Orleans Broadcasting Association v. United States was announced.

Seven justices joined Justice Stevens in an opinion that reversed a Fifth Circuit decision upholding the constitutionality of 18 U.S.C. Sec. 1304 and an FCC regulation that banned broadcast advertising of private casino gaming.

One whose last memory of commercial speech doctrine as expounded by the current Court was 44 Liquormart v. Rhode Island might well ask how a Court so fractured that it produced a plurality and four widely differing concurrences in arriving at a unanimous result in that 1996 case (which struck down Rhode Island's nearly total ban on price advertising of alcohol beverages) managed to achieve such a meeting of minds.

One answer is that the broadcast advertising restriction was no longer the barrier to the alleged corruption of public morals by radio signals that Congresses earlier in this century intended it to be -- a change wrought when huge gaps in the barrier were created by exemptions enacted by later Congresses for state lottery, state and Indian casino advertising, and a variety of charitable and corporate gaming activities.

Thus, justices who seemed on the verge of abandoning the Central Hudson test for something more strict in 44 Liquormart were able to join with those not yet prepared to deep-six the 19-year-old test, and to apply it