Television Digest with Consumer Electronics: Gambling Ad Ban Debated

Broadcasters told U.S. Supreme Court April 27 in oral argument that there's no justification for laws that prevent private casinos from advertising gambling business, while Justice Dept. said ban is needed to prevent compulsive gambling.

Representing New Orleans broadcasters that have challenged ban, attorney Bruce Ennis said law and FCC rulings upholding bans aren't effective because govt.-sponsored casinos and casinos on Indian reservations are able to advertise. Most gambling establishments, even if they have shows and hotels, have word "casino" in their names, communicating idea that gambling takes place, Ennis said. He said private casinos are involved in operating those on Indian reservations, many of which are located near cities and compete against privately run entities. He said casinos are permitted to advertise same information in newspapers and other media. He said that if govt. wants to curb gambling, it should regulate that activity and not penalize broadcasters.

Deputy Solicitor Gen. Barbara Underwood said private casinos constitute bulk of gambling business, and it's in govt. interest to prevent broadcast ads, which she called more "intrusive" than print ads. She said economic development for Indian reservations was worthwhile objective, and allowing reservations to advertise casinos helped that.

Broadcasters already can book casino ads that tout shows and restaurants. However, NAB Gen. Counsel Jack Goodman said that broadcasters risk criminal penalties by accepting ads for casinos that show even just few seconds of gambling activities. Donald Cooper, pres of Greater New Orleans Bcstg. Assn., said after oral argument that broadcasters shouldn't be penalized for broadcasting ads about legal activities sanctioned by La. state govt. in ads that aren't misleading to consumers.

Justices challenged Ennis to show why ads shouldn't be banned. He told Justice David Souter that all gambling ads aren't banned -- ads are allowed for govt. and Indian casinos, and told Justice Sandra O'Connor there's no evidence there's less compulsive gambling taking place at Indian casinos than in private casinos. He conceded to Justice John Stevens that ads for gambling shouldn't be shown in states in which gambling is illegal. Ennis said case would be "appropriate vehicle" to make landmark ruling protecting commercial speech. Case is complicated because 5th U.S. Appeals Court, New Orleans, has upheld commercial ban twice -- once on original review and again after Supreme Court remanded case to court following its 1996 decision in 44 Liquormart case that affirmed rights of commercial speech.

Underwood had tougher time, with justices continually pressing her to show that selective ban on ads would prevent compulsive gambling. Justice Stephen Breyer asked her whether, for example, it was unfair for govt. to allow ads for some casinos but not for all. He likened it to ban on ads for marshmallows, but not for Boy Scouts selling marshmallows because Boy Scouts are worthy cause. Justice Anthony Kennedy asked whether economic development was sufficiently worthy cause to limit casino's speech rights in return for "potential political largesse" of casino revenues. Justice Ruth Ginsberg told Underwood that "the true drunk will find the bottle" and that she didn't see connection between ad ban and govt. policy. Decision is expected before Court adjourns in late June.

Sen. Bryan (D-Nev.), who tried for years to have broadcast ad ban removed through legislation, attended hearing to support broadcasters and casino owners. He said there's no justification for ban when other casinos can advertise and when gambling on Indian reservations has been "increasing exponentially."