Striking a blow for free speech

By Vin Suprynowicz
web posted July 12, 1999

Last month the Supreme Court struck a major blow for First Amendment protection of that long-disparaged stepchild of liberty, "commercial speech."

Although an appeals court ruling has allowed legal gaming enterprises to advertise on radio and television in the Western states for several years -- and although the old federal blue law had been pierced with innumerable congressional exceptions to allow Indian casinos and even state lotteries to advertise --until this week there remained on the statute books a 1934 federal enactment banning broadcast advertising for "any lottery, gift enterprise or similar scheme offering prizes dependent in whole or in part upon lot or chance" ... even in jurisdictions where gambling is perfectly legal.

The Clinton administration had a chance here to side with plaintiffs -- a group of New Orleans-area broadcasters -- who merely wanted an arcane and outdated statute removed in order to allow legal businesses to advertise their wares.

Instead, the Democrats chose to demonstrate once again that liberals are today's true Puritans, insistent on retaining even the silliest and most vestigial power of the state to "protect" the poor child-like cretins who (they apparently believe) make up the American public, from the possible consequences of our own discretionary entertainment decisions.

On behalf of the Clinton administration, federal lawyer Barbara Underwood whined to the court about the "devastating social costs" caused by an estimated 3 million compulsive gamblers, arguing Congress was thus entitled to address part of the problem by reining in commercial speech. (But the costs can't possibly be as high as those run up by those who foolishly decide to drink alcohol, Barbara -- shall we ban beer advertisements, while we're at it? How about ads for flimsy little cars whose drivers don't stand a chance in a head-on?)

Thankfully, it didn't fly. In a rare and thus all the more overwhelming step, the high court unanimously struck down the federal government's pretense to "protect" compulsive gamblers from the lure of casinos, ruling that the ban on radio and television advertising violated the First Amendment.

Writing for the majority, Justice John Paul Stevens noted the advertising ban had become "so pierced by exemptions and inconsistencies that the government cannot hope to exonerate it."

Justice Stevens wrote that, although the law prohibited broadcasters from carrying casino ads regardless of the location of either the broadcast station or the casino, "advertisements for tribal casino gambling authorized by state compacts -- whether operated by the tribe or by a private party pursuant to a management contract -- are subject to no such broadcast ban, even if the broadcaster is located in ... a jurisdiction with the strictest of anti-gambling policies."

The court even conducted a little elementary seminar for the federal bureaucrats and the Justice Department on the merits of the free market, pointing out that far from being somehow unworthy of constitutional protection, commercial advertisements "disseminate accurate information as to the operation of market competitors. ... which can benefit listeners by informing their consumption choices and fostering price competition."

Yes, the ruling did stop short of the hoped-for blanket proclamation that commercial speech need no longer be considered a poor relation of the First Amendment, at all. But a unanimous ruling cannot help but move the law in that direction.

Why, based on the court's decision here in Greater New Orleans Broadcasting Association vs. U.S., one might even draw the conclusion that ours remains a capitalist country, and that it was the forces of puritan socialism who lost the Cold War, after all!

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. His new book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at $21.95 plus $3 shipping ($6 UPS; $2 shipping each additional copy) through Mountain Media, P.O. Box 271122, Las Vegas, Nev. 89127. The 500-page trade paperback may also be ordered via web site, or at 1-800-244-2224. Credit cards accepted; volume discounts available.

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