In its decision, the U.S. Court of Appeals for the 5th Circuit let stand federal curbs for the three states in its jurisdiction, curbs that had been struck down as unconstitutional by the 9th Circuit Court of Appeals in San Francisco.
As a result, the same gambling ads that are legal in seven Western states are now illegal in Louisiana, Texas and Mississippi. Attorneys say the 5th Circuit decision should make it incumbent on the Supreme Court to act on the First Amendment issue, especially given the Supreme Court's refusal in February to consider the government's appeal of the 9th Circuit decision that overturned the federal rules and law. The law has also been struck down in New Jersey.
UP TO SUPREME COURT TO RESOLVE
"You have a situation where the First Amendment depends on geography," said Dan Jaffe, exec VP of the Association of National Advertisers. "When you have differences [between jurisdictions], that's a conflict for the Supreme Court to resolve."
The National Association of Broadcasters also said that the case makes a Supreme Court decision "likely. . . the U.S. Supreme Court will eventually weigh in on the merits of this issue."
The New Orleans case filed by the Greater New Orleans Broadcasting Association was before the U.S. Supreme Court before. In 1996, after ruling in the 44 Liquormart case that Rhode Island had no right to impose a curb on liquor price advertising, the Supreme Court reversed the New Orleans appeals court's original 2-1 decision upholding the broadcast ban on gambling ads and told the 5th Circuit to take another look at the issue in light of the Liquormart decision.
The meaning of the Liquormart case has been widely debated and cited by both congressional and local advocates for restrictions on tobacco, alcohol and other kinds of advertising.
The New Orleans appeals court last week noted the Supreme Court had split in describing the reasons for the 44 Liquormart ruling; the lower court suggested the result was a confusing decision.
"The Supreme Court's jurisprudence has become as complex and difficult to rationalize as the statutory advertising regulations the [high] court has condemned," wrote Judge Edith Jones in the decision.
The majority of the New Orleans court went even further, being openly critical of Supreme Court justices in the Liquormart case, saying their decision restricted states' rights to limit ads as a way to obtain policy objectives achievable in other ways.
"Has the Supreme Court gone over the edge in constitutionalizing speech protection for socially harmful activities?" wrote Judge Jones.
New Orleans broadcasters last week expressed "surprise" it took the appeals court so long to essentially reiterate its earlier ruling.
"It's a disappointment that we waited over two years for a decision like this," said Don Cooper, executive director, Greater New Orleans Broadcasting Association. "We are very confident that the Supreme Court will hear our appeal and will throw out this judgment."