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Greater New Orleans Broadcasting Association, Inc. v. United States,
119 S.Ct. 1923 (1999).

Kristen M. Fletcher, J.D., LL.M.

Another First Amendment challenge by an association of Louisiana broadcasters and its members may have increased the chances for Mississippi casinos to attract more business. The U.S. Supreme Court recently held that the prohibition on the broadcasting of lottery information cannot be applied to advertisements of lawful private casino gambling, such as the casinos on the Mississippi coast, even though the broadcasts may be heard in neighboring states where gambling is illegal.

 The Broadcasting Association argued that restricting multi-state broadcasts was violative of the First Amendment. The Court applied a four-part test (the "Central Hudson test") to determine whether the casino advertising is protected by the First Amendment. First, the speech must concern lawful activity and must not be misleading. The Broadcaster's advertising met this requirement as the speech concerned lawful private casino gambling in Louisiana and Mississippi and disseminated accurate information to consumers. Second, the governmental  interest asserted in restricting the speech must be substantial. While the Court found that the government has identified an interest in reducing the social costs associated with gambling, it also reproached the government's inconsistent application of restrictions by pointing to the absence of such restrictions on the advertising of tribal casinos.

 Because these two questions yielded positive answers, the Court then asked if the regulation directly advances the governmental interest asserted and whether it is not more extensive than is necessary to serve that interest. The restriction failed because "any measure of the effectiveness of the government's attempt to minimize the social costs of gambling cannot ignore Congress' simultaneous encouragement of tribal casino gambling, which may well be growing at a rate exceeding any increase in gambling or compulsive gambling that private casino advertising could produce." (119 S.Ct. at 1933.) After criticizing the overall structure of gambling and gambling advertisement regulation, the Court struck down the restrictions on multi-state casino broadcasting, concluding that "[h]ad the Federal Government adopted a more coherent policy, or accommodated the rights of speakers in States that have legalized [gambling], this might be a different case." (119 S.Ct. at 1936).

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