GNOBA because "the flaw in the Government's case ... [was] ... fundamental" -- "the operation of Sec. 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it." (emphasis s upplied)

Justice Thomas, concurring only in the judgment, repeated his call in 44 Liquormart for application of the strict test required for "noncommercial" speech to commercial speech cases where "the government's asserted interest is to keep legal users of a p roduct or service ignorant in order to manipulate their choices in the marketplace...."

Does GNOBA suggest that Justice Thomas may now be a solitary voice calling for replacement of the Central Hudson test?

Such a conclusion should not be drawn from GNOBA's show of unanimity. The opinions of Justice Stevens in 44 Liquormart and GNOBA, taken together, suggest that Central Hudson's remaining life will be measured by the next "hard" case taken by the Court.

GNOBA was not a hard case. The prudential principle in GNOBA that produced unanimity was not First Amendment based, but the familiar proposition that a constitutional case that can be fully resolved on a narrower ground, will be, and not on a novel or unnecessarily broad pronouncement on a constitutional issue.

Rather handily, Justice Stevens thus left for another day the point he himself had advocated for the plurality in 44 Liquormart -- and which the petitioner and at least four amici urged on the Court in GNOBA -- that Central Hudson should be replaced wit h "a more straightforward and stringent test for assessing the validity of governmental restrictions on commercial speech."

Referring to what he termed "the intricacies" of applying Central Hudson, Justice Stevens described its four parts -- each important -- as, to an extent, "interrelated" in the sense that each raised a question "that may not be dispositive ... but the an swer to which may inform a judgment concerning the other three."

While this observation may have been intended to relate mainly to the interrelated intricacies of the federal regulation under review, we believe this characterization of Central Hudson could become a basis for future criticism of the test's essential f labbiness and elasticity.

District and circuit courts have used this flabbiness to defer to legislative reasoning by lowering the threshold for evidentiary support to sustain restrictions under Part 3 (direct and material advancement) and Part 4 (no more restrictive than necessa ry) when they perceive the government's interest (Part 2) as especially substantial or important.

The Stevens opinion also suggests that the government came perilously close to flunking Part 2 by not proving it had a "substantial interest," due to the inconsistent, incoherent, and ultimately irrational policy-shifting by Congress over the last sever al decades relative to state, Indian tribe, and other gambling operations.

Happily for development of commercial speech doctrine, the case was not so decided, and the Court's grounding of its decision on Parts 3 and 4 has yielded a major clarification of the government's burden of proof under Part 3.

GNOBA has closed an oft-used avenue to satisfaction of the government's burden of proof under Part 3. The Court rejected government's favorite presumption (generated in Central Hudson itself) about the causal effect of "promotional advertising" -- i.e. , such advertising creates demand for a product or service, therefore less or no advertising in a particular medium must produce a "direct advance" of the government interest served by the restriction.

Too often this presumption has been relied on by lower courts (including the Fifth Circuit in GNOBA) when there is little or no actual evidence in the record of "direct" or "material" advancement.

The GNOBA Court said: "[Even assuming some truth to the causal chain proffered by the government,] it does not necessarily follow that the ... speech ban has directly and materially furthered the asserted interest," noting that it "is also reasonable t o assume that much of that advertising would merely channel gamblers to one casino rather than another."