Posadas De Puerto Rico Associates v. Tourism Company of Puerto Rico
| Decision Date | 01 July 1986 |
| Docket Number | No. 84-1903,84-1903 |
| Citation | 106 S.Ct. 2968,478 U.S. 328,92 L.Ed.2d 266 |
| Parties | POSADAS DE PUERTO RICO ASSOCIATES, Condado Holiday Inn, Appellant v. TOURISM COMPANY OF PUERTO RICO |
| Court | U.S. Supreme Court |
Puerto Rico's Games of Chance Act of 1948 (Act) legalizes certain forms of casino gambling in licensed places in order to promote the development of tourism, but also provides that "[n]o gambling room shall be permitted to advertise or otherwise offer their facilities to the public of Puerto Rico." Implementing regulations prohibit the advertising of gambling parlors to the public in Puerto Rico but permit restricted advertising through publicity media outside Puerto Rico. Appellant, a partnership franchised to operate a casino in Puerto Rico, was fined by appellee public corporation which is authorized to administer the Act, for violating the advertising restrictions in the Act and the regulations. Appellant then filed suit against appellee in the Puerto Rico Superior Court, seeking a declaratory judgment that the Act and regulations, both facially and as applied by appellee, impermissibly suppressed commercial speech in violation of the First Amendment and the equal protection and due process guarantees of the Federal Constitution. The court held that the advertising restrictions had been unconstitutionally applied to appellant's past conduct, but the court then adopted a narrowing construction of the Act and regulations, declaring that they prohibited local advertising addressed to inviting residents of Puerto Rico to visit casinos, but not certain local advertising addressed to tourists even though it might incidentally reach the attention of residents. The court then held that, based on its construction of the laws, the statute and regulations were facially constitutional. The Puerto Rico Supreme Court dismissed appellant's appeal on the ground that it "d[id] not present a substantial constitutional question."
Held:
1. This Court has jurisdiction to review the Puerto Rico Supreme Court's decision pursuant to 28 U.S.C. § 1258(2), which authorizes an appeal to this Court from a decision of the Puerto Rico Supreme Court that is in favor of the validity of a Puerto Rico statute challenged as being repugnant to the Federal Constitution. Appellant's federal constitutional claims were adequately raised at every stage of the proceedings below, and under Puerto Rico law appellant had the right to appeal the Superior Court's decision to the Puerto Rico Supreme Court on the ground that the case involved or decided a substantial constitutional question under the Federal Constitution. Thus, the Puerto Rico Supreme Court's dismissal of the appeal for want of a substantial constitutional question constituted a decision on the merits in favor of the validity of the challenged statute and regulations. This Court's jurisdiction is not affected by appellant's late filing, under Puerto Rico's Rules of Civil Procedure, of its notice of appeal to the Puerto Rico Supreme Court, since that court has held the filing requirement to be nonjurisdictional, and its failure to dismiss on timeliness grounds must be viewed as a waiver of the requirement. P. 337-339
2. In reviewing the facial constitutionality of the Act and regulations, this Court must abide by the narrowing constructions announced by the Superior Court and approved sub silentio by the Puerto Rico Supreme Court. This would be the rule in a case originating in one of the 50 States, and Puerto Rico's status as a Commonwealth dictates application of the same rule. P. 339.
3. The Act and regulations, as construed by the Superior Court, do not facially violate the First Amendment. The advertising restrictions pass muster under the four-pronged test of Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). First, the particular kind of commercial speech at issue concerns a lawful activity and is not misleading or fraudulent, at least in the abstract, and thus is entitled to a limited form of First Amendment protection. Second, Puerto Rico's interest in restricting advertising to reduce the demand for casino gambling by Puerto Rico's residents and thus protect their health, safety, and welfare, constitutes a "substantial" governmental interest. Third, the restrictions on commercial speech "directly advance" the government's interest, and are not underinclusive simply because other kinds of gambling may be advertised to Puerto Rico residents. And fourth, the restrictions are no more extensive than necessary to serve the government's interest since, as construed by the Superior Court, they do not affect advertising aimed at tourists, but apply only to advertising aimed at Puerto Rico residents. Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); and Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), distinguished. There is no merit to appellant's argument that, having chosen to legalize casino gambling for Puerto Rico residents, the legislature is prohibited by the First Amendment from using restrictions on advertising to accomplish its goal of reducing demand for such gambling. Pp. 340-347.
4. The Puerto Rico Supreme Court properly concluded that, as construed by the Superior Court, the Act and regulations do not facially violate the due process or equal protection guarantees of the Constitution. Even assuming that appellant's argument that the advertising restric- tions are unconstitutionally vague, in violation of due process requirements, has merit with respect to the bare statutory language, nevertheless this Court is bound by the Superior Court's narrowing construction of the statute. Viewed in that light, and particularly with the interpretive assistance of the regulations as modified by the Superior Court, the statute is not unconstitutionally vague. Pp. 347-348.
Affirmed.
BRENNAN, J., post, p. 348; and STEVENS, J., post, 359, filed dissenting opinions, in which MARSHALL and BLACKMUN, JJ., joined.
Maria Milagros Soto, Hato Rey, P.R., for appellant.
Lino J. Saldana, Santurce, P.R., for appellee.
In this case we address the facial constitutionality of a Puerto Rico statute and regulations restricting advertising of casino gambling aimed at the residents of Puerto Rico. Appellant Posadas de Puerto Rico Associates, doing business in Puerto Rico as Condado Holiday Inn Hotel and Sands Casino, filed suit against appellee Tourism Company of Puerto Rico in the Superior Court of Puerto Rico, San Juan Section. Ap- pellant sought a declaratory judgment that the statute and regulations, both facially and as applied by the Tourism Company, impermissibly suppressed commercial speech in violation of the First Amendment and the equal protection and due process guarantees of the United States Constitution.1 The Superior Court held that the advertising restrictions had been unconstitutionally applied to appellant's past conduct. But the court adopted a narrowing construction of the statute and regulations and held that, based on such a construction, both were facially constitutional. The Supreme Court of Puerto Rico dismissed an appeal on the ground that it "d[id] not present a substantial constitutional question." We postponed consideration of the question of jurisdiction until the hearing on the merits. 474 U.S. 917, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985). We now hold that we have jurisdiction to hear the appeal, and we affirm the decision of the Supreme Court of Puerto Rico with respect to the facial constitutionality of the advertising restrictions.
In 1948, the Puerto Rico Legislature legalized certain forms of casino gambling. The Games of Chance Act of 1948, Act No. 221 of May 15, 1948 (Act), authorized the playing of roulette, dice, and card games in licensed "gambling rooms." § 2, codified, as amended, at P.R.Laws Ann., Tit. 15, § 71 (1972). Bingo and slot machines were later added to the list of authorized games of chance under the Act. See Act of June 7, 1948, No. 21, § 1 (bingo); Act of July 30, 1974, No. 2, pt. 2, § 2 (slot machines). The legislature's intent was set forth in the Act's Statement of Motives:
"The purpose of this Act is to contribute to the development of tourism by means of the authorization of certain games of chance which are customary in the recreation places of the great tourist centers of the world, and by the establishment of regulations for and the strict surveillance of said games by the government, in order to ensure for tourists the best possible safeguards, while at the same time opening for the Treasurer of Puerto Rico an additional source of income." Games of Chance Act of 1948, Act No. 221 of May 15, 1948, § 1.
The Act also provided that "[n]o gambling room shall be permitted to advertise or otherwise offer their facilities to the public of Puerto Rico." § 8, codified, as amended, at P.R.Laws Ann., Tit. 15, § 77 (1972).
The Act authorized the Economic Development Administration of Puerto Rico to issue and enforce regulations implementing the various provisions of the Act. See § 7(a), codified, as amended, at P.R.Laws Ann., Tit. 15, § 76a (1972). Appellee Tourism Company of Puerto Rico, a public corporation, assumed the regulatory powers of the Economic Development Administration under the Act in 1970. See Act of June 18, 1970, No. 10, § 17, codified at P.R.Laws Ann., Tit. 23, § 671p (Supp.1983). The two regulations at issue in this case were originally issued in 1957 for the purpose of implementing the advertising restrictions contained in § 8 of the Act. Regulation 76-218 basically reiterates the language of § 8. See 15 R. & R.P.R. § 76-218 (1972). Regulation 76a-1(7), as amended in 1971, provides in pertinent...
To continue reading
Request your trial
-
Coalition of New Jersey Sportsmen, Inc. v. Whitman
...between the legislature's ends and the means chosen to accomplish those ends." Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341, 106 S.Ct. 2968, 2977, 92 L.Ed.2d 266 (1986). Thus, does this challenged statute and restriction on speech "directly advance" the gov......
-
Pressl v. Appalachian Power Co.
...necessary steps that a party must take to build a dock to begin with. See, e.g., Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345–46, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986)(accepting the principle that the greater power includes the lesser power); City of La......
-
Wv Ass'n of Club Owners & Frat. Servs. v. Musgrave
...with gambling. Greater New Orleans Broad. Ass'n, 527 U.S. at 185-86, 119 S.Ct. 1923; Posadas de P.R. Assoc. v. Tourism Co. of P.R., 478 U.S. 328, 340-41, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986); Martin v. Stewart, 499 F.3d 360, 372-73 (4th Cir.2007) (Wilkinson, J., dissenting). The substantia......
-
IN RE AIR CRASH DISASTER AT STAPLETON INTERN.
...if it (1) concerns a lawful activity and (2) is neither fraudulent nor misleading. Posadas de Puerto Rico Associates v. Tourism Council of Puerto Rico, 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986). We affirm that portion of Order MDL 751-24 regarding the constitutionality of the DTPA......
-
Defining Native Advertising
...an electronic database or retrieval system without the express written consent of the American Bar Association. 1 Posadas v. Tourism Co., 478 U.S. 328 2 Nike v. Kassky; 27 Cal. 4th 939, 946, 45 P.3d 243, 247 (2002) Calif Civil Code 3344, Subd (d). 3 Freihofer v. Hearst Corp., 65 NY2d 135, 1......
-
Table of Cases
...v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922), 984 Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986), 202, 216, 301, 946-47, 1384, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), 1240 Po......
-
Matt Shechtman, Smoking Out Big Tobacco: Can the Family Smoking Prevention and Tobacco Control Act Equip the Fda to Regulate Tobacco Without Infringing on the First Amendment?
...be given strict scrutiny protection even if it is "commercial" in nature). 55 Compare Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 330-31 (1986) (declaring restrictions on the local advertising of gambling to be constitutional while giving deference to legislatures to estab......
-
Extraterritoriality and political heterogeneity in American federalism.
...plan cannot be ratified by the `consent' of state officials."). Whether states have such power is a question for the Court to decide. (12) 478 U.S. 328 (13) Id. at 345. (14) Kreimer, supra note 9, at 460 n.27 (citation omitted). (15) Id. (16) Posadas, 478 U.S. at 345. (17) Furthermore, Bige......
-
Public forums, selective subsidies, and shifting standards of viewpoint discrimination.
...and eventually repudiated by the Court. In his majority opinion in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 346 (1986), Justice Rehnquist argued that the state's power to forbid products or activities gave it the lesser power to prohibit advertising of ......