Brief Fact Summary. The Petitioner, the Greater New Orleans Broadcasting Association, Inc. (Petitioner), is challenging a United States statute and Federal Communication Commission (FCC) regulation that prohibits the advertisement of for-profit casino’s in broadcasts that might be heard in states where such activity is prohibited. The Petitioner’s challenge that these regulations restrict their First Amendment constitutional rights concerning commercial speech.
Synopsis of Rule of Law. 18 U.S.C. Section: 1304, prohibiting advertisements of for-profit casino’s in broadcast signals that reach states which prohibit such activity, regulates an intolerable amount of truthful speech about lawful conduct, meaning more than is absolutely necessary to achieve the goals of a substantial interest, violating the broadcasters First Amendment Rights of commercial speech under Central Hudson.
Issue. Whether, under the Central Hudson standard for commercial speech, 18 U.S.C Section: 1304 and the FCC regulation prohibiting casino advertisements for signals that may cross into states where such gambling is illegal, violates the First Amendment of the Constitution?
Held. Yes, the broadcast prohibition in 18 U.S.C. Section: 1304 violates the First Amendment of the Constitution. The Supreme Court in this case determined the Central Hudson standard applies because the Supreme Court feels it is unnecessary to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be resolved on a narrower ground. Because Central Hudson provides an adequate basis for decision, the four-part test from that decision applies. This test states: (1) Whether the expression is protected by the First Amendment of the Constitution. To be protected it must concern lawful activity and not be misleading. (2) Whether the asserted governmental interest is substantial. If both parts one and part two are satisfied then (3) A court must determine whether the regulation directly advances the governmental interest asserted. (4) Whether it is not more extensive than is necessary to serve that interest. Under Central Hudson, there is no doubt that casino adve
rtisements constitute free speech. In this case part two is satisfied by the fact that substantial governmental interests are put forth by the government. The government states these interests are (1) reducing the social costs associated with gambling or casino gambling and (2) assisting States that restrict gambling or prohibit casino gambling within their borders. But, the government fails when it comes to the third and fourth parts of the test. Under these parts, the government has not shown that the policies in Section:1304 sacrifice no more than a tolerable amount of truthful speech about lawful conduct. The government’s arguments that these regulations are no more than what is absolutely necessary were also unpersuasive. If the federal government adopted a more coherent policy, or accommodated the rights of speakers in States that have legalized the underlying conduct, then the regulation might hold up under First Amendment constitutional scrutiny.
When Congress regulates commercial speech, the Central Hudson test imposes a demanding standard of review and this standard had not been met here.
One concurring judge still believes the Central Hudson test should not apply because it can no more justify regulation of commercial speech than it can justify regulation of noncommercial speech.
The fact that the city failed to address its recently developed concern about newsracks by regulating their size, shape, appearance, or number indicates that it has not carefully calculated the costs and benefits associated with the burden on speech imposed by its prohibition.View Full Point of Law