Justices question casino ad ban

Richard Carelli

Tuesday, April 27, 1999 | 10:17 a.m.

WASHINGTON -- A Clinton administration effort to protect compulsive gamblers from the lure of some casinos and games of chance ran into rigorous Supreme Court questioning today.

Several justices wondered aloud about the legitimacy of a government ban on television and radio ads promoting privately owned casinos while such advertising is allowed for casinos owned by Indian tribes.

"Why doesn't Indian casino advertising have the same effect as private casino gambling with respect to the compulsive gambler?" Justice Stephen G. Breyer asked Justice Department lawyer Barbara Underwood.

Justice Ruth Bader Ginsburg suggested the ban might deter only casual gamblers. "The true drunk is going to find the bottle," she said, equating tribe-owned casinos with that bottle.

The advertising ban is being challenged by broadcasters as a violation of free-speech rights. The ban is in effect in only some parts of the nation because some federal appeals courts have ruled it unconstitutional while others have upheld it.

The justices' decision is expected by late June.

"The federal scheme is so riddled with exceptions that it cannot advance the government's asserted interests" in protecting compulsive gamblers, argued Bruce Ennis, a Washington lawyer representing New Orleans-area broadcasters.

But Underwood, the government's lawyer, emphasized "the devastating social costs that are inflicted" on an estimated 3 million compulsive gamblers, and said Congress is free to address the largest part of the problem.

She said privately owned casinos account for 40 percent of the revenues from all types of gambling nationwide.

A long-standing federal law bans broadcast advertising for "any lottery, gift enterprise or similar scheme offering prizes dependent in whole or in part upon lot or chance." But over the past 20 years, Congress has amended the anti-broadcast law to allow ads for casinos on Indian reservations, state-run lotteries or any gambling sponsored by nonprofit promoters for charitable purposes.

Today, 37 states and the District of Columbia sponsor and aggressively advertise lotteries, and more than two-thirds of the states are home to Indian-owned casinos. Non-Indian casinos are legal in 12 states.

Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter also asked questions that seemed skeptical of the government ban.

"Speech is different," Souter told Underwood at one point.

But Chief Justice William H. Rehnquist and Justice Antonin Scalia appeared far more sympathetic to the government's defense of the ban.

The broadcasters are supported in friend-of-the-court briefs submitted by, among others, the American Advertising Federation, American Civil Liberties Union, Newspaper Association of America and American Gaming Association. No friend-of-the-court briefs support the government ban.

Recent Supreme Court rulings appear to cut against such an advertising ban. The court last year barred states from banning advertising that refers to liquor prices in efforts to promote sobriety.