Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173 (1999)

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certiorari to the united states court of appeals for the fifth circuit

No. 98-387. Argued April 27, 1999—Decided June 14, 1999

Title 18 U. S. C. 1304 and an implementing Federal Communications

Commission (FCC) regulation prohibit, inter alia, radio and television broadcasters from carrying advertising about privately operated commercial casino gambling, regardless of the station's or casino's location. In United States v. Edge Broadcasting Co., 509 U. S. 418, this Court upheld the constitutionality of 1304 as applied to advertising of Virginia's lottery by a broadcaster in North Carolina, where no such lottery was authorized. Petitioners—representing New Orleans area broad-casters—wish to run advertisements for private commercial casinos that are lawful and regulated in Louisiana and Mississippi, and they filed this suit for a declaration that 1304 and the FCC's regulation violate the First Amendment as applied to them. The District Court utilized the test for assessing commercial speech restrictions set out in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566, and granted the Government's cross-motion for summary judgment. The Court of Appeals affirmed.

Held: Section 1304 may not be applied to advertisements of lawful private casino gambling that are broadcast by petitioners' radio or television stations located in Louisiana, where such gambling is legal. Pp. 183-196.

(a) Central Hudson's four-part test asks (1) whether the speech at issue concerns lawful activity and is not misleading and (2) whether the asserted governmental interest is substantial; and, if so, (3) whether the regulation directly advances the governmental interest asserted and (4) whether it is not more extensive than is necessary to serve that interest. The four parts of the Central Hudson test are not entirely discrete; all are important and, to a certain extent, interrelated. While some advocate a more straightforward and stringent test, Central Hudson, as applied in the Court's more recent commercial speech cases, provides an adequate basis for decision in this case. Pp. 183-184.

(b) All parties agree that petitioners' proposed broadcasts constitute commercial speech, and that they would satisfy the first part of the Central Hudson test: Their content is not misleading and concerns lawful activities, i. e., private casino gambling in Louisiana and Mississippi.


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