Supreme Court Kills Ad Ban

15 June 1999
In a unanimous 9-0 vote, the United States Supreme Court struck down on Monday a 65-year-old ban on radio and television advertising for casino gambling, declaring it a violation of the First Amendment. While the traditional casino gaming industry froths and scurries to initiate multi-zillion-dollar ad campaigns, Internet gaming experts are scratching their chins and wondering how the decision might affect the online gambling industry.

Justice John Paul Stevens wrote the opinion, and said the ban "was so pierced by exemptions and inconsistencies that the government cannot hope to exonerate it." Stevens made light of the government's argument that remote location justified one of the exemptions he cited -- for Indian casinos -- by saying "If distance were determinative, Las Vegas might have remained a relatively small community, or simply disappeared like a desert mirage."

In a commentary that might be considered by some germane to the pending ban on Internet gambling, Justice Stevens wrote that if a product was legal, "the speaker and the audience, not the government, should be left to assess the value of accurate and nonmisleading information" about it.

Janus Merritt Group Principal David Safavian offered the following analysis: "… In finding that there are commercial speech rights attendant to gambling operations, the court held: '[T]he power to prohibit or regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct.' The value of this case is that it would seemingly make provisions of the Kyl bill unconstitutional from the beginning."

Attorney John Crigler won't go quite this far, does agree that the decision could benefit the industry. "Although the ruling won't prevent congress from considering or adopting the Kyl bill, it does highlight the fact that federal gaming policy is anything but rational," Crigler said. "I think it gives the anti-Kyl forces some interesting new arguments."

[View an MS Word version of the Supreme Court Opinion]