The U.S. Supreme Court gave some indication last week that it may be ready to further expand corporate First Amendment free speech rights.
Hearing oral arguments in a New Orleans gambling ad case, more than half the justices repeatedly questioned government claims that federal laws and Federal Communication Commission rules banning privately owned casinos from advertising gaming could limit compulsive gambling, especially in light of the gambling ads that are allowed.
Several justices raised broader questions about speech regulation by government.
"Is it permissible to favor a particular interest by the speech statutes?" asked Justice Anthony Kennedy.
Justice Stephen Breyer questioned the logic of the government's regulations.
"Because we like the [Indian tribes] to make money, is that enough reason to stop [private casinos from] advertising?" he asked. "Is it justification to stop people from advertising?"
Attorneys for the Greater New Orleans Broadcasters Association, which is challenging the restrictions, said they were pleased with the response but cautioned that the questioning during oral arguments doesn't necessarily show the way a case will be decided.
"We are hopeful the court will use this case as a vehicle to rule that curbs on speech designed to keep people ignorant are illegal," said Bruce Ennis, who argued the case for the New Orleans broadcasters.
The gambling ad restrictions have been overturned in eight Western states and in New Jersey, but the 5th U.S. Circuit Court of Appeals in New Orleans upheld them, in part arguing the three-way split among Supreme Court justices in a 1996 case left unclear what rights the government has to restrict advertising.
Several justices, in hearing oral arguments April 27, seemed to indicate a strong desire to set aside ad curbs. Justice Ruth Bader Ginsburg said the advertising ban affects "the casual gambler" while having little effect on the compulsive gambler.
"I don't see the connection," she said.
Only one justice, Anthony Scalia, seemed to offer a defense of the statute, suggesting the government didn't have to choose "all or nothing" regulation and could choose to reduce advertising by cutting back on the majority of it, which comes from private casinos.
Chief Justice William Rehnquist also questioned whether the court overturning the case could force courts to then decide whether "government interest" in enacting regulations and laws is sufficient, case by case.
Barbara Underwood, deputy U.S. solicitor general, argued that broadcast ads can be limited because they convey more broad-reaching messages.
"A commercial showing a slot machine pouring out money is much more effective" than other ads, she said, adding that if Congress wanted to ban some ads but allow others, there was no reason for the court to force a complete ban.
The case is expected to be decided in June, and advertising groups hope the case becomes the most important since the 1996 44 Liqourmart case, in which the court overturned a Rhode Island curb on liquor price advertising.
Ira Teinowitz, Advertising Age. May 3,1999
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