US FEDERAL REGULATION
and successful policy. However, there a few key differences that make the Cigarette Advertising Act’s framework non- transferable to sports betting advertisements – the most important of which is the time of its passage. The Cigarette Advertising Act became law before the Supreme Court generally granted First Amendment protection to commercial speech in 1976. 14 The Court then developed guidelines for determining whether a regulation of commercial speech satisfies First Amendment review in 1980. 15 Such guidelines originated in the case Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The “Central Hudson” test is a multi-prong analysis which asks: (1) whether the speech at issue concerns lawful activity and is not misleading and (2) whether the asserted governmental interest is substantial; and, if so, (3) whether the regulation directly advances the governmental interest asserted and (4) whether it is not more extensive than is necessary to serve that interest. There is certainly some question as to whether the Cigarette Advertising Act would pass First Amendment constitutional muster under the Central Hudson test. Specifically, there would be an uphill battle trying to prove that Cigarette Advertising Act is “not more extensive than necessary.” As such, the Betting on Our Future Act would likely face this same challenge with the “not more extensive than necessary” prong (presuming the preceding prongs are satisfied). II Lottery Advertisements There are post-Central Hudson “sin advertising” statutes and accompanying case law providing further guidance. There is even caselaw questioning the federal government’s “substantial interest” in regulating gambling, as required under the Central Hudson test. For instance, the lottery advertisement regulations serve as a good basis of comparison because, just like sports betting, lotteries are not legal in all states. To this day, there are still five states that do not offer government- operated lotteries or participate in interstate drawings with rollover jackpots such as Powerball or Mega Millions. 16
In 1993, the Supreme Court addressed a First Amendment challenge to 18 U.S.C. § 1304, a 1934 federal statute that generally prohibits the broadcast of any lottery advertisements. 17 In United States v. Edge Broadcasting Co., the Supreme Court upheld the constitutionality of § 1304 as applied to broadcast advertising of Virginia’s lottery by a radio station located in North Carolina, where no such lottery was authorized. In this ruling, the Court analyzed § 1304 under the Central Hudson test. Under the facts, the Court found that the statute directly advanced the federal government’s substantial interest in supporting the policy of nonlottery states and not interfering in the policy of lottery states. The Court reasoned it did not burden substantially more speech than necessary to further the particularized interests, in a roundabout way of satisfying the Central Hudson test’s final prong. Six years later, the Court backtracked. In Greater New Orleans Broadcasting Ass’n, Inc. v. United States, the Court found that such prohibition was unconstitutional as applied to advertisements of lawful private casino gambling that were broadcast by a broadcaster’s radio or television stations located in Louisiana, where such gambling was legal. 18 Under the Central Hudson test, the Court cautiously accepted that the asserted government interest was substantial, but refused to recognize that the blanket ban directly advanced the asserted interest and was not more restrictive than necessary, as applied. In making its case, the federal government argued two substantial interests: (1) reducing the social costs associated with gambling, and (2) assisting states that restrict or prohibit forms of gambling. While these interests were ultimately deemed substantial, the Court noted that its conclusion is by no means self-evident. The Court opined that, “in the judgment of both Congress and many state legislatures, the social costs that support the suppression of gambling are offset, and sometimes outweighed, by countervailing policy considerations, primarily in the form of economic benefits.” The Greater New Orleans Broadcasting Ass’n opinion highlights the fact that Congress sanctioned casino gaming on Native
14 See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976). 15 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980). 16 Nathaniel Meyersohn, Why these five states don’t sell lottery tickets, CNN BUSINESS (Nov. 9, 2022), https://www.cnn.com/2022/11/09/busi- ness/states-without-a-lottery/index.html. 17 See United States v. Edge Broad. Co., 509 U.S. 418 (1993). 18 Greater New Orleans Broad. Ass’n Inc. v. United States, 527 U.S. 173, 176 (1999).
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IMGL MAGAZINE | APRIL 2023
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