Greater New Orleans Broad. Ass'n Inc. v U.S.

• Decision Date: 14 June 1999
• Docket Number: 98387
• Parties: SUPREME COURT OF THE UNITED STATES387 GREATER NEW ORLEANS BROADCASTING ASSOCIATION, INC., etc., et al., PETITIONERS v. UNITED STATES et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [
• Court: U.S. Supreme Court

527 U.S. 173

119 S.Ct. 1923

144 L.Ed.2d 161

SUPREME COURT OF THE UNITED STATES

No. 98 387

GREATER NEW ORLEANS BROADCASTING ASSOCIATION, INC., etc., et al., PETITIONERS v UNITED STATES et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[June 14, 1999]

Justice Stevens delivered the opinion of the Court.

Federal law prohibits some, but by no means all, broadcast advertising of lotteries and casino gambling. In United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), we upheld the constitutionality of 18 U.S.C. § 1304 as applied to broadcast advertising of Virginia's lottery by a radio station located in North Carolina, where no such lottery was authorized. Today we hold that §1304 may not be applied to advertisements of private casino gambling that are broadcast by radio or television stations located in Louisiana, where such gambling is legal.

I

Through most of the 19th and the first half of the 20th centuries, Congress adhered to a policy that not only discouraged the operation of lotteries and similar schemes, but forbade the dissemination of information concerning such enterprises by use of the mails, even when the lottery in question was chartered by a state legislature.1 Consistent with this Court's earlier view that commercial advertising was unprotected by the First Amendment, see Valentine v. Chrestensen, 316 U.S. 52, 54 (1942), we found that the notion that "lotteries are supposed to have a demoralizing influence upon the people" provided sufficient justification for excluding circulars concerning such enterprises from the federal postal system. Ex parte Jackson, 96 U.S. 727, 736 737 (1878). We likewise deferred to congressional judgment in upholding the similar exclusion for newspapers that contained either lottery advertisements or prize lists. In re Rapier, 143 U.S. 110, 134 135 (1892); see generally Edge, 509 U.S., at 421 422; Lottery Case, 188 U.S. 321 (1903). The current versions of these early antilottery statutes are now codified at 18 U.S.C. § 1301 1303.

Congress extended its restrictions on lottery-related information to broadcasting as communications technology made that practice both possible and profitable. It enacted the statute at issue in this case as §316 of the Communications Act of 1934, 48 Stat. 1088. Now codified at 18 U.S.C. § 1304 ("Broadcasting lottery information"), the statute prohibits radio and television broadcasting, by any station for which a license is required, of

"any advertisement of or information 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 scheme, whether said list contains any part or all of such prizes."

The statute provides that each day's prohibited broadcasting constitutes a separate offense punishable by a fine, imprisonment for not more than one year, or both. Ibid. Although §1304 is a criminal statute, the Solicitor General informs us that, in practice, the provision traditionally has been enforced by the Federal Communications Commission (FCC), which imposes administrative sanctions on radio and television licensees for violations of the agency's implementing regulation. See 47 CFR § 73.1211 (1998); Brief for Respondents 3. Petitioners now concede that the broadcast ban in §1304 and the FCC's regulation encompasses advertising for privately owned casinos a concession supported by the broad language of the statute, our precedent, and the FCC's sound interpretation. See FCC v. American Broadcasting Co., 347 U.S. 284, 290 291, and n. 8 (1954).

During the second half of this century, Congress dramatically narrowed the scope of the broadcast prohibition in §1304. The first inroad was minor: In 1950, certain not-for-profit fishing contests were exempted as "innocent pastimes far removed from the reprehensible type of gambling activity which it was paramount in the congressional mind to forbid." S. Rep. No. 2243, 81st Cong., 2d Sess., p. 2 (1950); see Act of Aug. 16, 1950, ch. 722, 64 Stat. 451, 18 U.S.C. § 1305.

Subsequent exemptions were more substantial. Responding to the growing popularity of State-run lotteries, in 1975 Congress enacted the provision that gave rise to our decision in Edge. 509 U.S., at 422 423; Act of Jan. 2, 1975, 88 Stat. 1916, 18 U.S.C. § 1307; see also §1953(b)(4). With subsequent modifications, that amendment now exempts advertisements of State-conducted lotteries from the nationwide postal restrictions in §§1301 and 1302, and from the broadcast restriction in §1304, when "broadcast by a radio or television station licensed to a location in a State which conducts such a lottery." §1307(a)(1)(B); see also §§1307(a)(1)(A), (b)(1). The §1304 broadcast restriction remained in place, however, for stations licensed in States that do not conduct lotteries. In Edge, we held that this remaining restriction on broadcasts from nonlottery States, such as North Carolina, supported the "laws against gambling" in those jurisdictions and properly advanced the "congressional policy of balancing the interests of lottery and nonlottery States." 509 U.S., at 428.

In 1988, Congress enacted two additional statutes that significantly curtailed the coverage of §1304. First, the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., authorized Native American tribes to conduct various forms of gambling including casino gambling pursuant to tribal-State compacts if the State permits such gambling "for any purpose by any person, organization, or entity." §2710(d)(1)(B). The IGRA also exempted "any gaming conducted by an Indian tribe pursuant to" the Act from both the postal and transportation restrictions in 18 U.S.C. § 1301 1302, and the broadcast restriction in §1304. 25 U.S.C. § 2720. Second, the Charity Games Advertising Clarification Act of 1988, 18 U.S.C. § 1307(a)(2), extended the exemption from §§1301 1304 for state-run lotteries to include any other lottery, gift enterprise, or similar scheme not prohibited by the law of the State in which it operates when conducted by: (i) any governmental organization; (ii) any not-for-profit organization; or (iii) a commercial organization as a promotional activity "clearly occasional and ancillary to the primary business of that organization." There is no dispute that the exemption in §1307(a)(2) applies to casinos conducted by State and local governments. And, unlike the 1975 broadcast exemption for advertisements of and information concerning State-conducted lotteries, the exemptions in both of these 1988 statutes are not geographically limited; they shield messages from §1304's reach in States that do not authorize such gambling as well as those that do.

A separate statute, the 1992 Professional and Amateur Sports Protection Act, 28 U.S.C. § 3701 et seq., proscribes most sports betting and advertising thereof. Section 3702 makes it unlawful for a State or tribe "to sponsor, operate, advertise, promote, license, or authorize by law or compact" or for a person "to sponsor, operate, advertise, or promote, pursuant to the law or compact" of a State or tribe any lottery or gambling scheme based directly or indirectly on competitive games in which amateur or professional athletes participate. However, the Act also includes a variety of exemptions, some with obscured congressional purposes: (i) gambling schemes conducted by States or other governmental entities at any time between January 1, 1976, and August 31, 1990; (ii) gambling schemes authorized by statutes in effect on October 2, 1991; (iii) gambling "conducted exclusively in casinos" located in certain municipalities if the schemes were authorized within one year of the effective date of the Act and, for "commercial casino gaming scheme[s]," that had been in operation for the preceding ten years pursuant to a State constitutional provision and comprehensive State regulation applicable to that municipality; and (iv) gambling on parimutuel animal racing or jai-alai games. §3704(a); see also 18 U.S.C. § 1953(b)(1) (3) (regarding interstate transportation of wagering paraphernalia). These exemptions make the scope of §3702's advertising prohibition somewhat unclear, but the prohibition is not limited to broadcast media and does not depend on the location of a broadcast station or other disseminator of promotional materials.

Thus, unlike the uniform federal antigambling policy that prevailed in 1934 when 18 U.S.C. § 1304 was enacted, federal statutes now accommodate both pro-gambling and antigambling segments of the national polity.

II

Petitioners are an association of Louisiana broadcasters and its members who operate FCC-licensed radio and television stations in the New Orleans metropolitan area. But for the threat of sanctions pursuant to §1304 and the FCC's companion regulation, petitioners would broadcast promotional advertisements for gaming available at private, for-profit casinos that are lawful and regulated in both Louisiana and neighboring Mississippi.2 According to an FCC official, however, "[u]nder appropriate conditions, some broadcast signals from Louisiana broadcasting stations may be heard in neighboring states including Texas and Arkansas," 3 Record 628, where private casino gambling is unlawful.

Petitioners brought this action against the United States and the FCC in the District Court for the Eastern District of Louisiana, praying for a declaration that §1304 and the FCC's regulation violate the First Amendment as applied to them, and for an injunction preventing enforcement of the statute and the rule against them. After noting that all parties agreed that the case should be decided on their cross-motions for summary judgment, the District Court ruled in favor of the Government. 866 F. Supp. 975, 976 (1994). The Court applied the standard for assessing commercial speech restrictions set out in Central...