The unanimous vote in the Greater New Orleans Broadcasters Association case clearly showed the high court is going to demand the same sort of scrutiny of ad curbs for so-called "sin" products as for any other products, industry executives said.
Others, however, argue the facts of this case were so unusual-a scattershot regulatory approach that allowed Native American casinos and states with lotteries to advertise gaming but barred private casino ads-that the ruling would have limited effect on other industries.
"It breaks no new ground whatsoever," said Matt Myers, legal counsel for the Campaign for Tobacco-Free Kids. "The [gambling] proposal was undermined because [the ban] was inconsistent and full of loopholes. It would not undermine the ability of Congress to restrict tobacco advertising as part of a coherent strategy to reduce tobacco sales."
'NOT A SLAM DUNK'
"It's not a slam dunk for advertising by any means," said George Hacker, director of the alcohol policies project for Center for Science in the Public Interest, who added that the opinion was "fairly narrow."
"I don't think it opens up the floodgates" to a rubber stamp for all advertising, he said.
The immediate effect on gambling advertising also was in doubt, although that's likely to become clear in the weeks ahead.
"We are intrigued by the decision, but until we resolve a question on whether we can show gambling advertising in all states or only in states where casino entertainment is legal, we are staying with our current advertising," said Pat Martin, director of external communications for Harrah's Entertainment.
AD CLARIFICATION SOUGHT
In a memo to its members, the American Association of Advertising Agencies said the Federal Communications Commission and U.S. Department of Justice will meet to determine whether the decision allows gambling to be shown only in the 11 states with casinos; in 20 additional states that allow some form of gambling advertising ranging from poker to bingo; or in all 50 states. No ads will be allowed pending the meeting, as well as certification of the opinion, which usually comes in 25 days.
Frank Fahrenkopf Jr., president-CEO of the American Gaming Association, said the immediate effect likely would be to allow private casinos to start broadcast advertising in states where Indian casinos already are advertising and, perhaps, to allow casinos that don't have other entertainment venues to use broadcast ads.
NO NEW STANDARD
The court in its decision didn't go as far in setting a new standard for government-imposed ad restrictions as ad groups had urged, but it reinforced earlier standards that governments had to demonstrate curbs will have an effect, are narrowly tailored, and that lesser speech-impairing actions wouldn't achieve the same effect.
The gambling ban imposed by federal law and FCC rules was unconstitutional because it wasn't part of a coherent regulatory pattern that would deter gambling, and because the government couldn't show that better enforcement of existing laws wouldn't work, the court said.
"The government presents no convincing reason for pegging its speech ban to the identity of the owners or operators of the advertised casinos," wrote Justice John Paul Stevens. "There surely are practical and non-speech related forms of regulation . . . that could more directly and effectively alleviate some of the societal costs of casino gambling."
REHNQUIST, THOMAS CONCUR
Chief Justice William Rehnquist and Justice Clarence Thomas wrote separate concurring opinions, with Mr. Renhquist saying one of his concerns was that advertising alone was being curbed and Mr. Thomas urging that commercial speech deserves the same protection private speech receives.
"This is a strong reinforcement that the 'less drastic means' test applies, even in advertising of so called sin products," said Burt Neuborne, a New York University professor who represented ad groups on a related case. "The court has made it absolutely clear. If the government wants to regulate advertising, it must have a coherent, clearly articulated reason."
Said Four A's Exec VP Hal Shoup: "This throws up a huge red flag in terms of the use of an ad ban to advance government interests."
"This has significance beyond gaming," said Dan Jaffe, exec VP of the