Friend-of-the-court briefs argue that the three-way split among judges in the high court's most far-reaching commercial speech decision-the 1996 44 Liquormart case in Rhode Island-has led to contradictory lower-court decisions.
The solution, these groups argue, is to give advertising speech the same protection as personal speech.
HEARING ARGUMENTS APRIL 27
On April 27 the Supreme Court is to hear oral arguments, with the Greater New Orleans Broadcasters Association challenging a federal law and Federal Communications Commission rules limiting broadcast gambling ads. A decision is due by early July.
The 9th U.S. Circuit Court of Appeals in San Francisco earlier overturned the same law and gambling rules, citing 44 Liquormart. The high court's ruling in that Rhode Island case was that government can't impose curbs on liquor price ads without first demonstrating the effect of the curbs and proving that less restrictive alternatives aren't available.
The San Francisco court, noting that gambling ads by Native Americans and state lottery ads are allowed, questioned how limiting ads of other gaming establishments curbed gambling. In New Jersey, a federal district court ruling in a case brought by major Atlantic City casinos went farther. It ruled that any curb on gambling ads violates the First Amendment.
In the New Orleans case, however, the 5th U.S. Circuit Court of Appeals took the opposite view, suggesting the Supreme Court was confused.
Nevada broadcasters-whose suit prompted the San Francisco decision-and the American Gaming Association are arguing in the New Orleans case that the court should overturn the decision for the same reason the San Francisco court did: Preventing private casinos from running ads that Native American-owned casinos and state lotteries can run doesn't prevent gambling and also discriminates against some providers of lawful services.
"The statute cannot directly and materially advance its asserted interests because of the overall irrationality of the government's regulatory scheme," said the broadcasters' filing.
The gaming association accuses the government of relying on "junk social science" to justify an ad ban, failing to show that limiting ads has any effect on gambling or that the ad ban was narrowly tailored.
The ad groups asked the court to look beyond the unique facts of the gambling case and to take a strong position on any attempt to impose ad curbs. Curbs on advertising for commercial purposes should get exactly the same protection as any other speech, they contend.
ADS ARE NEWS: ANA
The Association of National Advertisers said newspapers at the time of the federal Constitutional Convention viewed advertising as similar to news. The ANA also suggested the New Orleans court's confusion demonstrated the need for the high court to create a clear standard.
The American Association of Advertising Agencies-joined by broadcasters, publishers and outdoor companies-called on the court to provide "unambiguous, prescriptive guidance" in the face of continuing efforts of various governments