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Suffolk University Law Review

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471 COMMENTS Greater New Orleans Broadcasting Association v. United States: Broadcasters Have Lady Luck, or at least the First Amendment, on their Side I. INTRODUCTION Forty-eight of the fifty states have some form of legalized gambling. 1 In 1997, these states spent a collective $378 million on advertisin..

    COMMENTS

    Greater New Orleans Broadcasting

    Association v. United States:

    Broadcasters Have Lady Luck, or at

    least the First Amendment, on their

    Side

    I. INTRODUCTION

    1Forty-eight of the fifty states have some form of legalized gambling.

    In 1997, these states spent a collective $378 million on advertising for 2government-sponsored lotteries alone. In addition to the proliferation of lotteries, “casino gambling is one of the nation‟s fastest growing industries 3with more than 175 million household visits to casinos annually.” As

    Justice White once said: “While lotteries have existed in this country since its founding, [s]tates have long viewed them as a hazard to their citizens and to the public interest . . . . Congress has, since the early [nineteenth] 4century, sought to assist the [s]tates in controlling lotteries.”

    1. See Erika Gosker, Note, The Marketing of Gambling to the Elderly, 7

    ELDER L.J. 185, 186 (1999) (arguing the federal broadcast ban on casino advertisements should be upheld to protect the elderly). Utah and Hawaii currently have no form of legalized gambling. See id. One of the most common

    forms of legalized gambling is state-sponsored lotteries. See id. at 187. The

    number of states sponsoring such lotteries has increased from thirteen to thirty-seven since 1976. See id. at 187. There are also states which now permit riverboat casinos, most of which are along the Mississippi and Ohio Rivers. See id. at 188-

    89. Finally, Native American tribes operate casinos and high stakes bingo on tribal lands within several states. See Nicholas S. Goldin, Note, Casting a New

    Light on Tribal Casino Gaming: Why Congress Should Curtail the Scope of High Stakes Indian Gaming, 84 CORNELL L. REV. 798, 800 (1999) (arguing that

    Congress should restrict Indian casino gambling to the types of gambling specifically permitted by the individual states).

    2. See Gosker, supra note 1, at 193.

    3. Goldin, supra note 1, at 808.

    4. United States v. Edge Broad. Co., 509 U.S. 418, 421 (1993) (holding it is not a violation of the First Amendment to prohibit broadcasting of lottery advertisements in states where gambling is illegal).

    471

472 NEW ENGLAND LAW REVIEW [Vol. 35:2

    5In 1934, Congress passed the Communications Act to prohibit radio

    and television broadcasts of lottery information to households in an effort 6to minimize an activity that was associated with many social ills.

    Subsequently, states began to rely on revenue generated from lotteries to 7fund government programs. Likewise, Native American tribes started 8using gambling as a means to raise public revenue. As a result, Congress 9enacted several statutes curtailing the advertising prohibition.

    Following Congress‟ lead, the United States Supreme Court, in Greater 10New Orleans Broadcasting Ass’n v. United States, found 18 U.S.C. ?

    1304 unconstitutional as applied to broadcasters in states where gambling is legal, which has further chipped away the prohibitions on the 11advertising of lottery and casino gambling. Although the Supreme Court

    has repeatedly said that Congress has a substantial interest in protecting 12states‟ rights to choose whether to advocate or prohibit gambling, it is

    unlikely states will be able to restrict gambling advertisements when other 13alternatives are available. The Court also found that the inconsistencies in the statutory framework of ? 1304 were in direct conflict with the government‟s asserted interests, and therefore the statute must be 14unconstitutional with respect to the broadcasters in this case. However,

    the Court alluded to a different outcome had the government been careful 15to accommodate the interests of states where gambling is legal.

    This Comment contends that if the same analysis used in Greater New

    Orleans Broadcasting were applied to a situation involving the broadcast of gambling information by a company licensed to broadcast in a 16nonlottery state, the Court should find the ban to be unconstitutional. In

    5. Now codified as 18 U.S.C. ? 1304 (1994).

    6. For a list of the purported social ills surrounding casino gambling, see infra note 163.

    7. See Petitioner‟s Brief at 5, United States v. Players Int‟l, Inc., 525 U.S. 1094 (1999) (No. 98-721).

    8. See id. at 6.

    9. See infra notes 38-48 and accompanying text.

    10. 527 U.S. 173 (1999) (holding that where gambling is legal, states may not prohibit the broadcasting of advertisements for private casino gambling).

    11. See 18 U.S.C. ? 1304 (1994).

    12. See, e.g., Edge Broad. Co., 509 U.S. at 426; Greater New Orleans, 527

    U.S. at 185-86.

    13. See Greater New Orleans, 527 U.S. at 192; see also infra notes 188-93

    and accompanying text (listing other alternatives to speech restrictions).

    14. See Greater New Orleans, 527 U.S. at 190; see also infra notes 100-10

    and accompanying text.

    15. See Greater New Orleans, 527 U.S. at 195. “Had the Federal

    Government adopted a more coherent policy, or accommodated the rights of speakers in [s]tates that have legalized the underlying conduct, . . . this might be a different case.” Id. (citation omitted).

    16. See infra notes 139-202 and accompanying text.

2001] GREATER NEW ORLEANS BROADCASTING 473

    other words, if ? 1304 is unconstitutional as applied to broadcasters in Louisiana, where gambling is legal, it must also be unconstitutional as applied to any other state, regardless of whether or not gambling is legal in that state.

    Part II.A of this article will discuss the background surrounding 18 U.S.C. ? 1304, the federal statute which prohibits the broadcasting of lottery advertisements, and the one on which Greater New Orleans 17Broadcasting was based. Congress has created some exceptions to the ? 1304 advertising ban, covering advertisements for state run lotteries, Native American-sponsored casinos, and non-profit charities. The 18background surrounding these exemptions will be discussed in Part II.B.

    Part II.C briefly reviews the relevant aspects of the First Amendment of the United States Constitution, as well as the level of protection afforded commercial speech under the Supreme Court‟s so-called Central Hudson 19test. Part II.D discusses Greater New Orleans Broadcasting, including

    both the facts of the case and the Court‟s reasons for striking down 18 20U.S.C. ? 1304 as it applied to the broadcasters in that case. Part III.A

    discusses the impact of Greater New Orleans Broadcasting on states 21where gambling is illegal. Part III.B explains what constitutes lawful 22conduct in terms of First Amendment analysis, while Part III.C applies

    Central Hudson to the facts of Edge Broadcasting in light of the Court‟s 23decision in Greater New Orleans Broadcasting. Part III.D explores and 24rejects the possibility of a “vice exception” to the Central Hudson test.

    Part III.E discusses the possibility of state regulations on the broadcasting 25of casino advertisements in the absence of an enforceable federal statute.

    Part III.E also draws some comparisons between radio and television 26broadcasting and advertising via the Internet. Part IV provides some 27policy reasons for allowing casinos to advertise in all states. Part V

    concludes that ? 1304 should be found unconstitutional regardless of whether gambling is legal in each state, and states seeking to control gambling within their borders will have to do so by utilizing non-speech 28related alternatives.

    17. See infra notes 29-37 and accompanying text.

    18. See infra notes 38-48 and accompanying text.

    19. See infra notes 49-66 and accompanying text.

    20. See infra notes 67-115 and accompanying text.

    21. See infra notes 116-28 and accompanying text.

    22. See infra notes 129-38 and accompanying text.

    23. See infra notes 139-203 and accompanying text.

    24. See infra notes 204-22 and accompanying text.

    25. See infra notes 223-53 and accompanying text.

    26. See infra notes 254-64 and accompanying text.

    27. See infra notes 265-83 and accompanying text.

    28. See infra notes 284-91 and accompanying text.

474 NEW ENGLAND LAW REVIEW [Vol. 35:2

    II. BACKGROUND

    A. History of 18 U.S.C. ? 1304

    29In 1934, Congress enacted the Communications Act. This is a

    criminal statute which prohibits the broadcasting of any advertisement concerning “any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or 30scheme.” The idea behind this statute dates back to the early nineteenth century, when postal restrictions were put in place with respect to state 31lotteries. At that time, the Louisiana Lottery had taken hold of the nation 32and was deemed to bring with it many social ills and illegal activity. In

    an effort to eliminate this lottery and its negative effects, Congress used its 33Commerce Clause power and prohibited the transport of lottery 34information in both interstate and foreign commerce. After the invention

    of the radio, Congress extended the advertising prohibition to that medium for two reasons: “(1) to promote consistency with the postal prohibitions; and (2) to subject broadcasters to the same prohibitions as those in print media so that broadcasters did not enjoy an unfair advertising advantage 35over newspapers.”

    While an argument can be made that it was not Congress‟ intention to 36include casino gambling in ? 1304, the courts generally interpret casino

    29. The Act is now codified as 18 U.S.C. ? 1304 (1994).

    30. Id.

    31. See Richard Shawn Oliphant, Note, Prohibiting Casinos From

    Advertising: The Irrational Application of 18 U.S.C. ? 1304, 38 ARIZ. L. REV.

    1373, 1377-78 (1996) (arguing the application of 18 U.S.C. ? 1304 has been irrationally applied to casino gambling).

    32. See id. at 1377.

    33. See infra note 211 and accompanying text.

    34. See Oliphant, supra note 31, at 1379.

    35. Id. Prior to the Communications Act of 1934, the radio industry relied on a voluntary Code of Fair Competition in which broadcasters agreed not to broadcast lottery information and advertisements on the air. See John Crigler et al.,

    Why Sparky Can’t Bark - A Study of the Ban on Broadcast Advertisements for

    Lotteries, 2 COMMLAW CONSEPCTUS 43, 50, 60-62 (1994) (arguing that the current

    application of ? 1304 is discriminatory by favoring tribal, state and charitable gambling advertisements over those of private casino operators).

    36. See Oliphant, supra note 31, at 1380-83. Congress did not use any

    specific words in the statute to indicate an intention to include casino gambling under ? 1304, even though they were well aware that other forms of gambling existed. See id. at 1382-83. Furthermore, the Federal Communication

    Commission (FCC) has determined that betting on certain sporting events is not considered a “lottery” because they involve some level of skill. See id. at 1381-82.

    Casino gambling activities such as poker include some level of skill as well, and therefore should not be considered a “lottery” under ? 1304. See id. at 1382.

2001] GREATER NEW ORLEANS BROADCASTING 475

    gambling as being included within the scope of the restriction in this 37statute.

    B. Exceptions to the Broadcasting Ban: 18 U.S.C. ? 1307 and 25 U.S.C. ?

    2720

    Since 1934, Congress has narrowed the scope of ? 1304 by enacting numerous exceptions to the advertising ban, including not-for-profit 3839fishing contests, state-run lotteries if broadcast in a “lottery” state, and 40Native American-sponsored casinos and lotteries. The Indian Gaming

    Regulatory Act of 1988 authorized tribes to conduct certain forms of 41gambling pursuant to tribal-state compacts. It also exempted any

    gaming conducted by Indian tribes from the postal and transportation restrictions found in 18 U.S.C. ?? 1301-1302, as well as the broadcasting 42ban in ? 1304. This was done in an effort to advance “tribal economic 43development.”

    37. See Greater New Orleans Broad. Ass‟n v. United States, 527 U.S. 173, 177 (1999); FCC v. American Broad. Co., 347 U.S. 284, 290-91 (1954). In American Broadcasting, the Court set up three elements to be used in determining whether ? 1304 is applicable: “(1) distribution of prizes; (2) according to chance; (3) for a consideration.” Id. at 290.

    38. See 18 U.S.C. ? 1305 (1994) (exempting from ? 1304, “any fishing contest not conducted for profit wherein prizes are awarded for the specie, size, weight, or quality of fish caught by contestants in any bonafide fishing or recreational events”).

    39. See 18 U.S.C. ? 1307 (1994). There have been three waves of legalized gambling. In 1612, the first wave of legalized gambling began when the British Crown authorized lotteries to support the Jamestown Settlement. See Oliphant,

    supra note 31, at 1377. This wave ended with the beginning of the Civil War. See

    id. The second wave started shortly after the Civil War, in an effort by the South to raise much-needed funds. See id. State run lotteries began the third wave of

    legalized gambling in the United States. See id. at 1379. New Hampshire was the

    first state to sponsor such a lottery in 1963, and other states were quick to follow. See id.

    40. See 25 U.S.C. ? 2720 (1994). “[T]itle 18 shall not apply to any gaming conducted by an Indian tribe pursuant to this chapter.” Id.

    41. See 25 U.S.C. ? 2701 (1994). The Indian Gaming Regulatory Act (IGRA), “not only represented a break with the federal government‟s historical deference to states in the area of gambling regulation, but it marked the first time in U.S. history that the federal government expressly approved of casino gambling.” Goldin, supra note 1, at 817. Congress‟ intent was to allow certain types of gaming on Indian land including social/religious gaming, bingo-type gaming, off track betting, and the lottery. See Mike Roberts, The National

    Gambling Debate: Two Defining Issues, 18 WHITTIER L. REV. 579, 587-88 (1997).

    42. See 25 U.S.C. ? 2720 (1994).

    43. Goldin, supra note 1, at 819 (quoting 18 U.S.C. ? 2702 (1994)).

476 NEW ENGLAND LAW REVIEW [Vol. 35:2

    By 1975, states began operating lotteries in an effort to raise money for 44government programs. In an attempt to counter potential prosecution of these states, Congress enacted ? 1307, which exempted state-run lotteries from restrictions on advertisements in states that sponsored such 45lotteries. In 1988, Congress passed the Charity Games Advertising 46Clarification Act (Charity Games Act), which further exempted from ?

    1304 broadcasts that advertise lotteries for charitable and governmental organizations, as well as “promotional activity by a commercial organization . . . [that is] clearly occasional and ancillary to the primary 47business of that organization.” As this Comment argues, these 48exceptions collectively are what undermine ? 1304.

    C. Commercial Speech and the First Amendment

Commercial speech has historically been treated differently from 49political speech for the purposes of the First Amendment. Commercial

    speech has been afforded less First Amendment protection based on the rationale that “[it] is not essential to the maintenance of a legitimate, viable democracy and an informed, active public,” and that it is “capable of objective truth, whereas political speech is ripe with alternative, 50subjective views.” However, technology has made advertising prevalent in our society, and as a result, people tend to rely on these advertisements 51to obtain important information about the market. This increasing

    44. See Crigler, supra note 35, at 51.

    45. See 18 U.S.C. ? 1307(a)(1) (1994).

    46. See 18 U.S.C. ? 1307(a)(2)(A) (1994).

    47. 18 U.S.C. ? 1307(a)(2)(B) (1994).

    48. See infra notes 100-10 and accompanying text.

    49. See Dana M. Shelton, Greater New Orleans Broadcasting Association v. United States: The Fifth Circuit Upholds the Federal Ban on Casino Gambling Advertising Against a First Amendment Challenge, 70 TUL. L. REV. 1725 (1996).

    The First Amendment provides: “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. CONST. amend. I. “The right of freedom of speech

    and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach . . . .” Griswold v. Connecticut, 381 U.S. 479, 482 (1965)

    (internal citations omitted) (finding a statute which prohibited the use of contraceptives to be unconstitutional).

    50. Shelton, supra note 49, at 1726.

    51. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 496 (1996) (holding that statutes which ban liquor prices in advertisements are unconstitutional). “In this age of mass information and communication, commercial expression greatly influences both national developments and the daily lives of Americans.” Commercial Speech - Advertising, 110 HARV. L. REV.

    216, 224 (1995).

2001] GREATER NEW ORLEANS BROADCASTING 477

    52reliance on commercial speech has in turn prompted an interest in 53consumer protection by Congress. Prior to Virginia State Board of 54Pharmacy v. Virginia Citizens Consumer Council, Inc., commercial 55speech was historically not given First Amendment protection at all.

    The Supreme Court left it in the hands of Congress to determine the extent 56to which commercial advertising should be regulated.

    Although commercial speech has now been given some level of First Amendment protection, there has been some recent disagreement among 57members of the Supreme Court as to the degree of that protection. In

    any event, “[t]he Central Hudson test remains the only conclusive test

    used to determine whether [a specific] regulation of commercial speech is 58constitutional.” This balancing test provides an analytical framework for

    52. Commercial speech, defined as speech that does „“no more than propose a commercial transaction,”‟ is entitled to First Amendment protection. See

    Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh Comm‟n on Human Relations, 413 U.S. 376, 385 (1973)).

    53. See 44 Liquormart, 517 U.S. at 496. “In accord with the role that

    commercial messages have long played, the law has developed to ensure that advertising provides consumers with accurate information about the availability of goods and services.” Id.

    54. 425 U.S. 748 (1976). In striking down a ban on price advertising for prescription drugs, the Court said:

     Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.

Id. at 765.

    55. See United States v. Edge Broad. Co., 509 U.S. 418, 426 (1993).

    56. See David Jones, Note, Gambling With First Amendment Rights: Playing

    the Cards Dealt by Valley Broadcasting Co. v. United States, 5 VILL. SPORTS &

    ENT. L.J. 397, 405-06 (1998) (arguing that the broadcast ban does not violate the First Amendment).

    57. See, e.g., 44 Liquormart, 517 U.S. at 517, 518 (Scalia, J. & Thomas, J., concurring). While the Court agreed as to the result of the case, there were extensive concurring opinions with respect to the reasoning that should be applied. See id. Justice Scalia argued that Central Hudson had “nothing more than policy

    intuition to support it.” Id. at 517. Justice Thomas argued that Central Hudson

    should not be applied to situations where the government is keeping legal users of a product in the dark. See id. at 518.

    58. Jones, supra note 56, at 408 (alteration from original).

478 NEW ENGLAND LAW REVIEW [Vol. 35:2

    courts to use when reviewing statutory restrictions on speech that are 59intended to promote social policies.

    The Court in Central Hudson set up a four-part test for First 60Amendment analysis of commercial speech. In order for commercial

    speech to receive any First Amendment protection, the communication is 61required to be about a lawful activity and cannot be misleading. If this is

    so, the government must then assert a substantial interest in favor of the 62speech restriction. The third prong requires that the restriction directly 63and materially advance the government‟s interest. The final prong

    requires that the restriction be no more extensive than necessary to 64achieve the government‟s asserted interests. If each of these elements 65has been met, the restriction would not violate the First Amendment.

    While it is seldom a problem to survive the initial prongs of Central

    Hudson, the challenge comes in passing the third and fourth prongs, where 66the courts tend to vary in their application. It is this four-part analysis

    that the Court used in Greater New Orleans Broadcasting.

    D. Greater New Orleans Broadcasting Association v. United States

    1. Facts and Procedure

    The petitioners in this case, a group of Louisiana broadcasters who operate radio and television stations in New Orleans, were seeking to

    59. See Andrew S. Gollin, Comment, Improving the Odds of the Central

    Hudson Balancing Test: Restricting Commercial Speech as a Last Resort, 81

    MARQ. L. REV. 873, 875 (1998) (recommending a more strenuous standard than “reasonable fit” under the fourth prong of the Central Hudson test).

    60. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm‟n, 447 U.S. 557, 566 (1980) (finding a regulation which banned the electric company from advertising to promote the use of electricity to be a violation of the First Amendment).

    61. See id. “[T]here can be no constitutional objection to the suppression of

    commercial messages that do not accurately inform the public about lawful activity.” Id. at 563.

    62. See id. at 566.

    63. See id. “[T]he Court has declined to uphold regulations that only indirectly advance the state interest involved.” Id. at 564.

    64. See id. at 566. “The regulatory technique may extend only as far as the interest it serves. The [s]tate cannot regulate speech that poses no danger to the asserted state interest, . . . nor can it completely suppress information when narrower restrictions on expression would serve its interest as well.” Id. at 565.

    65. See, e.g., Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) (upholding a prohibition on direct-mail solicitation of clients by lawyers within thirty days of personal injury or wrongful death). But see Edenfield v. Fane, 507

    U.S. 761 (1993) (finding a law banning personal solicitation by certified public accountants to be a violation of the First Amendment).

    66. See Gollin, supra note 59, at 876 n.14.

2001] GREATER NEW ORLEANS BROADCASTING 479

    broadcast advertisements for casino gambling, an activity which is legal in 67Louisiana. Fearing sanctions from the Federal Communications 68Commission (FCC), they brought an action in federal district court, seeking both a declaratory judgment that ? 1304 was unconstitutional as 69applied to them, and an injunction to prevent its enforcement. The court 70found in favor of the government, and the broadcasters appealed. On 71appeal, the Court of Appeals for the Fifth Circuit affirmed. While a writ 72of certiorari was pending, the Supreme Court decided 44 Liquormart, Inc. 73v. Rhode Island, and remanded Greater New Orleans Broadcasting to

    the Court of Appeals. On appeal, the Fifth Circuit affirmed its prior 74decision, finding the statute constitutional as applied to the petitioners,

    and the ruling in 44 Liquormart to have no impact on the result in this 75case. The case again came to the Supreme Court upon a writ of

    67. See Greater New Orleans Broad. Ass‟n v. United States, 527 U.S. 173, 183 (1999). “The Greater New Orleans Broadcasting Association . . . is a non-

    profit trade association representing member television and radio stations in the New Orleans, Louisiana area in matters affecting the broadcast industry.” Petitioner‟s Brief at 3, Greater New Orleans (No. 98-387).

    68. The FCC is the administrative body that regulates the broadcasting of lottery and casino gambling information. See generally FCC v. American Broad.

    Co., 347 U.S. 284 (1954) (finding giveaways by radio and television broadcasters to their listeners do not fall under ? 1304). The Federal Communications Act of 1934 gives the Commission the power to issue, revoke, renew and suspend licenses in an effort to control radio and television programming. See State

    Regulation of Radio and Television, 73 HARV. L. REV. 386, 389 (1959). “Indeed,

    the Commission would be remiss in its duties if it failed . . . to aid in implementing [? 1304] . . . .” American Broad. Co., 347 U.S. at 289. The FCC‟s

    version of ? 1304 can be found in regulation 47 C.F.R. ? 73.1211 (1999). Accounting for the same exceptions as in ? 1304, ? 73.1211, states in part that “[n]o licensee of an AM, FM, or television broadcast station . . . shall broadcast

    any advertisement of or information concerning any lottery, gift enterprise, or similar scheme . . . .” 47 C.F.R. ? 73.1211(a) (1999).

    69. See Greater New Orleans Broad. Ass‟n v. United States, 866 F. Supp. 975, 977 (E.D. La. 1994).

    70. See id. at 977-78.

    71. See Greater New Orleans Broad. Ass‟n v. United States, 69 F.3d 1296, 1298, 1302 (5th Cir. 1995) (holding that ? 1304 is not a violation of the First Amendment as applied to the broadcasters in this case).

    72. See Greater New Orleans Broad. Ass‟n v. United States, 519 U.S. 801

    (1996).

    73. 517 U.S. 484 (1996).

    74. See Greater New Orleans Broad. Ass‟n v. United States, 149 F.3d 334, 341 (5th Cir. 1998) (holding that ? 1304 is not a violation of the First Amendment as applied to the broadcasters in this case).

    75. See id. at 337. The Appeals Court noted the Supreme Court‟s divided interpretation of the Central Hudson test in 44 Liquormart left unclear “[the] level

    of proof . . . required to demonstrate that a particular commercial speech regulation directly advances the state‟s interest.” Id.

480 NEW ENGLAND LAW REVIEW [Vol. 35:2

    certiorari, at which point the Fifth Circuit‟s decision was overturned and 18 U.S.C. ? 1304 was found unconstitutional as applied to the Louisiana 76broadcasters.

    2. Holding and Reasoning

    The United States Supreme Court held that 18 U.S.C. ? 1304 “may not

    be applied to advertisements of private casino gambling . . . broadcast by radio or television stations located in [a state] . . . where such gambling is 7778legal.” Finding “no need to break new ground,” the Court applied the 79Central Hudson test for commercial speech. The Court found the speech 80to be truthful communication regarding legal gambling in Louisiana.

    76. See Greater New Orleans, 527 U.S. at 183. Certiorari was granted the

    second time because the Fifth Circuit‟s decision was in conflict with both the Ninth Circuit‟s decision in Valley Broad. Co. v. United States, 107 F.3d 1328 (9th

    Cir. 1998), and a New Jersey Federal District Court in Players Int‟l, Inc. v. United States, 988 F. Supp. 497 (D.N.J. 1997). See id. In Valley Broadcasting, the court

    found that various exceptions to ? 1304 prevent it from achieving the government‟s interest in protecting non-casino states from the reach of casino

    advertisements. See Valley Broad., 107 F.3d at 1336. The government also failed

    to provide adequate evidence that the restriction would in fact further their interests. See id. In Players, the court found that other reasonable alternatives to the speech restriction exist and, therefore, ? 1304 fails First Amendment analysis as applied in 44 Liquormart. See Players, 988 F. Supp. at 506.

    77. Greater New Orleans, 527 U.S. at 176.

    78. Id. at 184. “It is . . . an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be fully resolved on a narrower ground.” Id. The Court meant that it was unnecessary at this time to develop a new test for commercial speech because Central Hudson and the

    cases that followed provided an adequate framework. See id. But see generally

    Gollin, supra note 59, for a discussion on the inadequacies of the current Central

    Hudson test as well as suggestions and alternatives for its improvement or replacement.

    79. See Greater New Orleans, 527 U.S. at 184; see also supra notes 60-66

    and accompanying text (discussing the elements examined during the Central

    Hudson analysis).

    80. See Greater New Orleans, 527 U.S. at 184.

     [The] content [of the broadcasts] is not misleading and concerns lawful activities, i.e., private casino gambling in Louisiana and Mississippi. As well, the proposed commercial messages would convey information -- whether taken favorably or unfavorably by the audience -- about an activity that is the subject of intense public debate in many communities. In addition, petitioners‟ broadcasts presumably would disseminate accurate information as to the operation of market competitors, such as pay-out ratios, which can benefit listeners by informing their consumption choices and fostering price competition.

Id. at 184-85.

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