US FEDERAL REGULATION
American lands through approved tribal-state compacts and enacted other statutes reflecting approval of state legislation authorizing a host of public and private gambling activities. In contrast, the Court in Edge spent little time questioning the government’s purported interest. The Court’s new skepticism in Greater New Orleans Broadcasting Ass’n may give present- day sportsbooks some sense of comfort that a court would duly acknowledge the benefits to be had from sports betting and the government’s mixed signals on the same. In Greater New Orleans Broadcasting Ass’n, § 1304 lost on the Central Hudson test’s third and fourth prongs. The government took the position that § 1304’s restriction directly advanced its interest in alleviating the social costs of gambling. The government asserted that “promotional” broadcast advertising concerning casino gambling increased demand for such gambling, which in turn increased the amount of casino gambling producing social costs. Presuming this is an accurate causal chain, the Court did not find an outright ban on television and radio lottery advertisements materially and directly advanced such interest. As part of its reasoning, the Court acknowledged it is a fair assumption that more advertising would have some impact on the overall demand, but one can also reasonably assume the advertising would serve the purpose of channeling a gambler to one casino over another. In directly addressing the requirements of the third and fourth prong, the Court stated that there “surely are practical and nonspeech-related forms of regulation — including a prohibition or supervision of gambling on credit; limitations on the use of cash machines on casino premises; controls on admissions; pot or betting limits; location restrictions; and licensing requirements – that could more directly and effectively alleviate some of the social costs of casino gambling.” What the Court found more important, however, circles-back to its quarrel with the substantial interest described above — the legislators’ mixed-signals. The government was condemning advertising private gambling, while simultaneously approving tribal casino gaming by way of the Indian Gaming Regulatory Act (“IGRA”). In this regard, the IGRA exempted tribal gaming
from § 1304’s broadcast advertising restrictions. As such, the Court found the government could not assert that, as applied, § 1304 was directly advancing an interest in a manner that was not more extensive than is necessary. 19 Betting on Our Future Act Under the Central Hudson Test Precedent and Modern Society Considering the above, the Betting on Our Future Act will likely face challenges in trying to pass First Amendment scrutiny. The reasons that § 1304 failed the third and fourth prong of the Central Hudson test in Greater New Orleans Broadcasting Ass’n are likely transferrable to the Betting on Our Future Act. First, as the Court pointed out in Greater New Orleans Broadcasting Ass’n, there are practical forms of regulation that could more directly and effectively alleviate some of the social costs of gambling. One social cost concern is that members of the public do not appreciate the addictive effects of sports betting. In lieu of prohibiting television advertisements, states could enact legislation requiring sports betting advertisements to include warnings about the potential harmful and addictive effects of gambling. For instance, Massachusetts, a newcomer to the sports betting market, requires that advertisements include a link and phone number for the Massachusetts Problem Gambling Helpline “and such other information regarding responsible gaming as may be required by the [Massachusetts Gaming] Commission.” 20 As another example, there are concerns that younger people are more susceptible to problem gambling. Many states prohibit, at a minimum, targeting sports betting advertisements or promotions to minors. 21 A narrower way to address this would be to prohibit the promotion or advertisement of sports betting in university-owned news assets or on college campuses. Such legislation prohibits someone from handing out promo codes on campus and using other direct-to-consumer marketing tactics. This is already law in Arizona. 22 That these options exist serves to likely undermine the contention that the Betting on Our Future Act is not more extensive than is necessary.
19 Greater New Orleans Broad. Ass’n, 527 U.S. at 195, 196. 20 205 MASS. CODE REGS. 265.06(2). 21 See 11 VA. ADMIN. CODE 5-70-240. 22 See ARIZ. ADMIN. CODE. § 19-4-110(F).
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IMGL MAGAZINE | APRIL 2023
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