Should gambling ads be allowed on the air?
High court hears case on casino advertising today that pits morality
WASHINGTON — Since 1934, Congress has banned the broadcast of advertisements promoting casino gambling, out of concern about the social costs.
Today the US Supreme Court will hear arguments that the time has come to lift the ban. The case involves New Orleans broadcasters who want to advertise for private casinos operating in Louisiana and Mississippi.
It sets up an unusual clash between morality and free speech - one that will help define the limits of the First Amendment and may accelerate the growth of the $600-billion-a-year legal wagering business in the United States.
At present, federal law makes the airing of gambling ads punishable by license revocation, fines, and up to one year in prison. The broadcasters say that the 65-year-old advertising ban is outdated and violates their free speech right to communicate with prospective gamblers.
Government lawyers counter that the ban is still an effective way to protect some citizens from the false and dangerous suggestion that unlimited wealth and happiness is just a roll of the dice away. But the government's ability to credibly make this argument has been substantially eroded, not only by the explosion of government-approved state lotteries and Indian-run gambling emporiums in recent decades, but also by extensive advertising campaigns - some run by state governments - seeking to lure citizens into gambling.
"Gaming in all its forms, along with government-sanctioned broadcasts promoting it, are now part of mainstream America," says a brief filed by the Greater New Orleans Broadcasting Association. "Some form of legalized gaming is allowed today in 47 states. Private, non-Indian casino gambling is legal in 22 states."
It is perhaps a sign of the times that the case isn't even about the ills of gambling. Instead, it is viewed as a case about the protections of the First Amendment.
Constitutional scholars say the case offers a critical window into the emerging views of the justices on First Amendment rights. At issue is whether government censorship of casino ads is justified by the goal of protecting citizens from the lure of gambling, or whether the law must be struck down as an unconstitutional violation of the casinos' free-speech right to broadcast truthful, non-misleading advertisements.
Analysts say the case presents the high court with its best opportunity in three years to afford full First Amendment protection to so-called commercial speech.
For many years the court has applied different standards of constitutional protection for different kinds of speech. When political speech is involved, the most sacred under the First Amendment, the justices have afforded it the highest level of protection. But when commercial speech, like broadcast advertisements, has been involved, they have applied a lower standard.
Laurence Winer, a law professor at Arizona State University in Tempe, says a decision in this case in favor of broadcasters may raise the standard for commercial speech closer to that used for political speech. Some analysts hope that a majority of justices will go even farther and follow an earlier suggestion by Justice Clarence Thomas to afford truthful commercial speech the same protections as political speech.
SUCH a decision would be bad for critics of legalized gambling. But it would mark a significant expansion of First Amendment rights of businesses to communicate truthful information in ads. "The question is whether a company has a right to advertise an activity which is perfectly legal, or whether restrictions can be placed on it just because the government perceives the activity to be socially undesirable," says Rodney Smolla, a professor at the University of Richmond Law School in Virginia.
Lawyers with the US Solicitor General's Office are representing the Federal Communications Commission, which enforces the federal broadcast ban on casino ads. They argue that the federal government has a substantial interest in reducing the social costs associated with gambling, and that banning ads helps prevent people from getting hooked.
"Gambling creates significant social costs, including the devastating effects of compulsive gambling and the criminal activity associated with gambling," the government's brief says.
Government lawyers also argue that without the ban, TV and radio ads for casinos in Louisiana and Mississippi would reach Texas and Arkansas, two states that now outlaw casinos.
Broadcasting Association lawyers counter that since 1934, Congress has carved out exemptions to the broadcast ban. In 1975, lottery ads were exempted, and in 1988, Congress lifted the ban on ads promoting gambling for charity fund-raising and casinos on Indian reservations.
Lawyers for the association say the government could use other methods to protect citizens from gambling that do not violate the free-speech rights of the casinos and broadcasters. For example, lawmakers could outlaw casinos, or they could impose hefty admission fees, limits on credit, or regulate the amount that could be wagered in a day.
"Regulating the conduct, rather than the speech, is not impractical; it is precisely the approach the government has taken with respect to sports betting," the association brief says.
Some argue that in a democratic society, the government has no business restricting the spread of truthful information: Public ignorance can never be an acceptable goal of government policy. The "tradition in an open society is you let adults make the decisions for themselves and you don't artificially intervene by making certain kinds of discussion taboo," says Mr. Smolla.