Substitute "consumers to one product or service rather than another" after "channel" in that sentence and you have the Court recognizing a fundamental principle of marketing theory: Advertising dollars are spent in mature markets to solidify brand loyalty and add market share by promoting brand switching, not to increase overall demand for a product or service.

The Court's rejection of the presumption should be decisive in producing losses for government in a number of pending cases in lower federal courts. The bottom line: Proof of "direct and material advancement" cannot be evaded by hollow presumptions.

The GNOBA decision also noted Sec. 1304's capacity for restricting the flow of accurate product information, but "not commercial enticements of all kinds, and then only when conveyed over certain forms of media and for certain types of gambling -- indeed for only certain brands of casino gambling -- and despite the fact that messages about the availability of such gambling are being conveyed over the airwaves by other speakers."

Without trying to parse this too finely, this criticism of the federal broadcast restrictions appears to have direct applicability to the widespread efforts of state and local governments to restrict tobacco and alcohol beverage advertising in media within their limited authority, such as outdoor or publicly visible ads -- efforts that cannot reach other media used by speakers about the restricted product or service, or the multitude of social and cultural factors that may influence a person to purchase such products.

Again, this ineffectiveness highlights the need for governments to supply evidence of real, not presumed, "direct and material advance," particularly in the many cases where the restriction is justified as an effort to protect the well being of children or minors -- who today are awash in a sea of peer, cultural, and media-based influences to engage in behavior that society and the law reserve for adults.

These points -- just a few that can and will be extracted from the GNOBA opinion -- could be viewed as hallmarks of an enhanced Central Hudson test that a majority of the Court may use in the years ahead to resolve the cases working their way through the courts. These involve restrictions on tobacco ads, alcohol beverage ads, gambling ads, sexually oriented business ads, lawyer advertising, and even residential signs.

But, we believe eight justices rallied around the Central Hudson test in GNOBA because it was slam-dunk easy to dispose of the case that way, and provided a show of unanimity for lower courts -- perhaps resulting in more correct dispositions and fewer cert.-worthy petitions.

Still, the differences among the justices exhibited in 44 Liquormart are too fundamental to just disappear without a trace, now and forever. There is going to be a case where some of the justices think the government has satisfied Central Hudson, while others, not disagreeing with that conclusion, believe (as they espoused in 44 Liquormart) that a "more straightforward and stringent" test should govern the decision.

When that case arrives at the Court, perhaps the lines drawn will be more like those in the federalism/states rights cases. We think that the "more straightforward and stringent" test is strict scrutiny.

Like Justice Thomas (and probably Justices Stevens, Kennedy, and Ginsburg), we believe that strict scrutiny should be the only test for speech restrictions intended to manipulate American citizens' choices in making life decisions, whether they are buying a beverage, enrolling in a political party, deciding what book to read or movie to see -- or choosing between Trump Casino and Foxwoods for a few hours of blackjack.