Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico
Encyclopedia
Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico et al. (478 U.S. 328; 106 S. Ct 2968; 92 L. Ed. 2d 266) was a 1986 appeal to the Supreme Court of the United States
to determine whether Puerto Rico
's Games of Chance Act of 1948 is in legal compliance with the United States Constitution
, specifically as regards freedom of speech
, equal protection
and due process
. In a 5–4 decision, the Supreme Court held that the Puerto Rico government (law) could restrict advertisement for casino
gambling
from being targeted to residents, even if the activity itself was legal and advertisement to tourists was permitted. The U.S. Supreme Court affirmed the Puerto Rico Supreme Court conclusion, as construed by the Puerto Rico Superior Court, that the Act and regulations do not facially violate the First Amendment
, nor did it violate the due process or Equal Protection Clause
s of the Fourteenth Amendment
.
The controversial case has been subsequently referenced with respect to the legality of bans of tobacco advertising
, liquor advertising and other advertisement related to gambling. It is regarded as a landmark case in illustrating the elasticity of the Central Hudson standards for regulating commercial speech
, as the Court did not request evidence or argument supporting the need of Puerto Rico to regulate such advertisement, but merely accepted that such regulations seemed reasonable. It also implicitly allowed for more strict regulations on commercial speech related to legal but presumably dangerous "vice" activities. Although there have been calls to overturn Posadas and it has been ignored as precedent
in some, if not all, subsequent cases, the case has never been officially overruled.
for such advertising. In 1979, the Tourism Company sent a memo to casino operators further clarifying restrictions on advertising to include "the use of the word 'casino' in matchbooks, lighters, envelopes, inter-office and/or external correspondence, invoices, napkins, brochures, menus, elevators, glasses, plates, lobbies, banners, flyers, paper holders, pencils, telephone books, directories, bulletin boards or in any hotel dependency or object which may be accessible to the public in Puerto Rico." Following this, it fined the company again several times.
In 1981, the company filed suit alleging generally that the Act violated Constitutional guarantees of free speech, equal protection and due process and specifically that the Tourism Company had violated the company's Constitutional rights in interpreting and applying it. The Puerto Rican Superior Court which heard the case agreed that the advertising restrictions applied to the company had been unconstitutional, describing the Tourism Company's acts as "capricious, arbitrary, erroneous and unreasonable." However, it "adopted a narrowing construction of the Act and regulations" which permitted local advertising if aimed at inviting tourists but not residents to partake. Under that new construction, the Puerto Rican Supreme Court determined that the Act was not facially
(always) unconstitutional.
On appeal, the Supreme Court of Puerto Rico
affirmed the lower court's decision. The company appealed to the U.S. Supreme Court, seeking review of the federal question.
The American Civil Liberties Union
, the American Association of Advertising Agencies
, the American Broadcasting Companies
, the AFL-CIO
, the American Newspaper Publishers Association
, the National Broadcasting Company, the Atlantic City Casinos Association and the Association of National Advertisers
submitted amici curiae
in favor of the appellant.
Posadas de Puerto Rico Associates argued that the First Amendment to the United States Constitution
did not permit restrictions on commercial speech
except when such speech failed to meet the four-part test established by the 1980 landmark case Central Hudson Gas & Electric Corp. v. Public Service Commission (447 U.S. 557). The Central Hudson standards establish that, when the activity is legal and the advertising not misleading, the government must show substantial interest in the advertisement and substantial benefit from regulating it, as well as demonstrating that such regulations are not excessive to the need. The Tourism Company rebutted that First Amendment does not protect local advertising of casinos and, even if it did, restriction on such advertisement met the Central Hudson standard as reasonable and necessary to secure substantial governmental interest.
The case was decided on July 1, 1986. With a 5/4 majority, the Supreme Court decided on behalf of the appellees, dismissing the facial challenge of the Act and the regulations that supported it, indicating that the Act, in its narrowed construction, was not inherently constitutionally invalid. Among the Justices supporting the majority view were Warren E. Burger
, Lewis F. Powell, Jr., Sandra Day O'Connor
, Byron White
and William Rehnquist
, who wrote the majority opinion. Dissenters included Thurgood Marshall
and Harry Blackmun
, as well as William J. Brennan, Jr.
and John Paul Stevens
, who authored dissenting opinions.
In voicing the majority view, Rehnquist stated that the government of Puerto Rico had a legitimate concern in limiting gambling among its residents to promote public well-being under the same logic used by many of the 50 United States in making gambling illegal. The substantial interest of the government thus affirmed, he indicated that advertising aimed at local residents would undoubtedly increase demand and that the limitations were not excessive because restriction was limited to casino gambling as opposed to all games of chance. In his dissent, Brennan indicated that the determination to make casino gambling legal in Puerto Rico was indication that Puerto Rico does not believe "serious harmful effects" result from gambling, that the appellees had not demonstrated that restricting such advertisement would reduce any civic "serious harmful effects" of gambling, or that restriction of free speech was the best or only method of reducing such harmful effects. Justice Stevens, dissenting, concluded that, "The general proposition advanced by the majority today—that a State may prohibit the advertising of permitted conduct if it may prohibit the conduct altogether—bears little resemblance to the grotesquely flawed regulation of speech advanced by Puerto Rico in this case.... The First Amendment surely does not permit Puerto Rico's frank discrimination among publications, audiences, and words."
justice Richard Posner
suggested in 2004's Frontiers of Legal Theory that to an economist
, this view is not reasonable, even granting for the sake of argument that the state does have interest in imposing more rigorous restrictions on commercial speech. Posner notes that reducing advertising costs to casinos might lead to their reducing gambling costs, which may in turn increase gambling and any undesirable social effects.
Posadas has been precedent in a number of subsequent cases on commercial speech due to its implicit recognition of a "vice
" allowance for restrictions under which federal and state governments can regulate nonmisleading advertisement for substances and services that are legal, but might be subject to regulation for civic good
. It was the first in a series of permissive decisions regarding regulation of commercial speech, applying a more lax standard than the intermediate scrutiny recommended in Central Hudson. Specifically, the case has been brought up in considering other cases related to tobacco
, alcohol
and gambling. At the same time that the Court applied this more relaxed scrutiny to some commercial speech cases, it applied more rigorous scrutiny to others.
was considering a proposal to support extending the ban on tobacco advertising to all media, even though the act of smoking was legal. In the courtroom, the case was cited as precedent in two 1990s Supreme Court cases testing alcohol-related laws: Rubin v. Coors Brewing Co. (1995) and 44 Liquormart, Inc. v. Rhode Island
(1996). According to attorney Bruce Ennis, Rubin "put the nail in the coffin of the Posadas decision" when the court unanimously decided that it was unconstitutional to prohibit the display of alcoholic content on beer labels. However, Posadas was not overturned then nor when it was raised during 44 Liquormarts successful challenge to a law banning publication of liquor prices in Rhode Island
, even though Justices Stevens, Ruth Bader Ginsburg
, Anthony Kennedy
, and Clarence Thomas
all called for it to be overruled. Even though she did not call for overruling, Justice O'Conner—whose opinion was signed by Rehnquist, Steven Breyer and David Souter
—stated that the Court had properly ignored Posadas in determining subsequent cases. Although Freedom of Commercial Speech posits this decision as a "rebounding" from the Posadas decision, it noted that 44 Liquormart nevertheless reaffirmed the Court's opinion that commercial speech was less deserving of constitutional protection than non-commercial speech.
In 1999, it became precedent in another Supreme Court case involving gambling advertisement, Greater New Orleans Broadcasting Association v. U.S., which challenged the Federal Communications Commission
's right to restrict advertisement on games of chance with the justification that such restrictions would reduce gambling, given that advertisements for such games of chance as state lotteries
and Native American gambling enterprises
were allowed in all states and all gambling advertisement had been permitted by the United States Court of Appeals for the Ninth Circuit
in nine. At issue was whether the state of Louisiana
could restrict the advertisement to its residents of legal private casinos. In its hearing of that case, the United States Court of Appeals for the Fifth Circuit
affirmed that the prohibition was constitutional based on Posadas, but the Supreme Court held rather that private casinos must be permitted to advertise to residents since gambling was legal in that state. However, as of 2007, Posadas had still not been properly overturned.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to determine whether Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
's Games of Chance Act of 1948 is in legal compliance with the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, specifically as regards freedom of speech
Freedom of speech in the United States
Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...
, equal protection
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
and due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. In a 5–4 decision, the Supreme Court held that the Puerto Rico government (law) could restrict advertisement for casino
Casino
In modern English, a casino is a facility which houses and accommodates certain types of gambling activities. Casinos are most commonly built near or combined with hotels, restaurants, retail shopping, cruise ships or other tourist attractions...
gambling
Gambling
Gambling is the wagering of money or something of material value on an event with an uncertain outcome with the primary intent of winning additional money and/or material goods...
from being targeted to residents, even if the activity itself was legal and advertisement to tourists was permitted. The U.S. Supreme Court affirmed the Puerto Rico Supreme Court conclusion, as construed by the Puerto Rico Superior Court, that the Act and regulations do not facially violate the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, nor did it violate the due process or Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
s of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
The controversial case has been subsequently referenced with respect to the legality of bans of tobacco advertising
Tobacco advertising
Tobacco advertising is the advertising of tobacco products or use by the tobacco industry through a variety of media including sponsorship, particularly of sporting events. It is now one of the most highly regulated forms of marketing...
, liquor advertising and other advertisement related to gambling. It is regarded as a landmark case in illustrating the elasticity of the Central Hudson standards for regulating commercial speech
Commercial speech
Commercial Speech is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product...
, as the Court did not request evidence or argument supporting the need of Puerto Rico to regulate such advertisement, but merely accepted that such regulations seemed reasonable. It also implicitly allowed for more strict regulations on commercial speech related to legal but presumably dangerous "vice" activities. Although there have been calls to overturn Posadas and it has been ignored as precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
in some, if not all, subsequent cases, the case has never been officially overruled.
Prior history
On 15 May 1948, Puerto Rico adopted Act No. 221, the Games of Chance Act, which allowed regulated casino gambling but disallowed advertisement of gambling establishments within the boundaries of Puerto Rico. In 1978, the Texas-based Posadas de Puerto Rico Associates, which hosted a gambling facility at the Condado Holiday Inn and Sands Casino, was fined twice by the Puerto Rico Tourism CompanyPuerto Rico Tourism Company
The Puerto Rico Tourism Company was created during Governor Luis A. Ferré's administration to coordinate the marketing and growth of Puerto Rico's tourism sector...
for such advertising. In 1979, the Tourism Company sent a memo to casino operators further clarifying restrictions on advertising to include "the use of the word 'casino' in matchbooks, lighters, envelopes, inter-office and/or external correspondence, invoices, napkins, brochures, menus, elevators, glasses, plates, lobbies, banners, flyers, paper holders, pencils, telephone books, directories, bulletin boards or in any hotel dependency or object which may be accessible to the public in Puerto Rico." Following this, it fined the company again several times.
In 1981, the company filed suit alleging generally that the Act violated Constitutional guarantees of free speech, equal protection and due process and specifically that the Tourism Company had violated the company's Constitutional rights in interpreting and applying it. The Puerto Rican Superior Court which heard the case agreed that the advertising restrictions applied to the company had been unconstitutional, describing the Tourism Company's acts as "capricious, arbitrary, erroneous and unreasonable." However, it "adopted a narrowing construction of the Act and regulations" which permitted local advertising if aimed at inviting tourists but not residents to partake. Under that new construction, the Puerto Rican Supreme Court determined that the Act was not facially
Facial challenge
In the context of American jurisprudence, a facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void...
(always) unconstitutional.
On appeal, the Supreme Court of Puerto Rico
Supreme Court of Puerto Rico
The Supreme Court of Puerto Rico is the highest court of the Commonwealth of Puerto Rico, having judicial authority within Puerto Rico to interpret and decide questions of Commonwealth law. As the highest body of the judicial branch of the Puerto Rican government, it is analogous to one of the...
affirmed the lower court's decision. The company appealed to the U.S. Supreme Court, seeking review of the federal question.
Case
The case was argued on April 28, 1986, with Maria Milagros Soto representing the appellant and Lino J. Saldana the appellees.The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, the American Association of Advertising Agencies
American Association of Advertising Agencies
The 4A's is an American advertising agency trade association.Founded in 1917, their website states that 4A's membership "produces approximately 80 percent of the total advertising volume placed by agencies nationwide." The association issues annual awards for the best agencies, in different...
, the American Broadcasting Companies
American Broadcasting Company
The American Broadcasting Company is an American commercial broadcasting television network. Created in 1943 from the former NBC Blue radio network, ABC is owned by The Walt Disney Company and is part of Disney-ABC Television Group. Its first broadcast on television was in 1948...
, the AFL-CIO
AFL-CIO
The American Federation of Labor and Congress of Industrial Organizations, commonly AFL–CIO, is a national trade union center, the largest federation of unions in the United States, made up of 56 national and international unions, together representing more than 11 million workers...
, the American Newspaper Publishers Association
Newspaper Association of America
The Newspaper Association of America is a trade association representing approximately 2000 newspapers in the United States and Canada. Member newspapers represented by the NAA include large daily papers, non-daily and small-market publications, as well as digital and multiplatform...
, the National Broadcasting Company, the Atlantic City Casinos Association and the Association of National Advertisers
Association of National Advertisers
The Association of National Advertisers is a representative body for the marketing community in the United States of America. ANA’s membership includes over 400 companies with 9,000 brands that collectively spend over one hundred billion dollars in marketing communications and advertising....
submitted amici curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
in favor of the appellant.
Posadas de Puerto Rico Associates argued that the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
did not permit restrictions on commercial speech
Commercial speech
Commercial Speech is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product...
except when such speech failed to meet the four-part test established by the 1980 landmark case Central Hudson Gas & Electric Corp. v. Public Service Commission (447 U.S. 557). The Central Hudson standards establish that, when the activity is legal and the advertising not misleading, the government must show substantial interest in the advertisement and substantial benefit from regulating it, as well as demonstrating that such regulations are not excessive to the need. The Tourism Company rebutted that First Amendment does not protect local advertising of casinos and, even if it did, restriction on such advertisement met the Central Hudson standard as reasonable and necessary to secure substantial governmental interest.
Decision
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
, Lewis F. Powell, Jr., Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
, Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
and William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, who wrote the majority opinion. Dissenters included Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
and Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, as well as William J. Brennan, Jr.
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
and John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, who authored dissenting opinions.
In voicing the majority view, Rehnquist stated that the government of Puerto Rico had a legitimate concern in limiting gambling among its residents to promote public well-being under the same logic used by many of the 50 United States in making gambling illegal. The substantial interest of the government thus affirmed, he indicated that advertising aimed at local residents would undoubtedly increase demand and that the limitations were not excessive because restriction was limited to casino gambling as opposed to all games of chance. In his dissent, Brennan indicated that the determination to make casino gambling legal in Puerto Rico was indication that Puerto Rico does not believe "serious harmful effects" result from gambling, that the appellees had not demonstrated that restricting such advertisement would reduce any civic "serious harmful effects" of gambling, or that restriction of free speech was the best or only method of reducing such harmful effects. Justice Stevens, dissenting, concluded that, "The general proposition advanced by the majority today—that a State may prohibit the advertising of permitted conduct if it may prohibit the conduct altogether—bears little resemblance to the grotesquely flawed regulation of speech advanced by Puerto Rico in this case.... The First Amendment surely does not permit Puerto Rico's frank discrimination among publications, audiences, and words."
Implications
The case is regarded as a landmark in illustrating the elasticity of the Central Hudson standards for regulating commercial speech. In 2003's Freedom of Commercial Expression, Roger Shiner points out that what was remarkable about the Posadas decision was the way in which the Court applied Central Hudson, not requesting any evidence that the restrictions were necessary to protect state interest in public wellbeing, but simply accepting that the assertion that it might be necessary and useful was reasonable. Court of AppealsUnited States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
justice Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
suggested in 2004's Frontiers of Legal Theory that to an economist
Economist
An economist is a professional in the social science discipline of economics. The individual may also study, develop, and apply theories and concepts from economics and write about economic policy...
, this view is not reasonable, even granting for the sake of argument that the state does have interest in imposing more rigorous restrictions on commercial speech. Posner notes that reducing advertising costs to casinos might lead to their reducing gambling costs, which may in turn increase gambling and any undesirable social effects.
Posadas has been precedent in a number of subsequent cases on commercial speech due to its implicit recognition of a "vice
Vice
Vice is a practice or a behavior or habit considered immoral, depraved, or degrading in the associated society. In more minor usage, vice can refer to a fault, a defect, an infirmity, or merely a bad habit. Synonyms for vice include fault, depravity, sin, iniquity, wickedness, and corruption...
" allowance for restrictions under which federal and state governments can regulate nonmisleading advertisement for substances and services that are legal, but might be subject to regulation for civic good
Blue law
A blue law is a type of law, typically found in the United States and, formerly, in Canada, designed to enforce religious standards, particularly the observance of Sunday as a day of worship or rest, and a restriction on Sunday shopping...
. It was the first in a series of permissive decisions regarding regulation of commercial speech, applying a more lax standard than the intermediate scrutiny recommended in Central Hudson. Specifically, the case has been brought up in considering other cases related to tobacco
Tobacco
Tobacco is an agricultural product processed from the leaves of plants in the genus Nicotiana. It can be consumed, used as a pesticide and, in the form of nicotine tartrate, used in some medicines...
, alcohol
Alcohol
In chemistry, an alcohol is an organic compound in which the hydroxy functional group is bound to a carbon atom. In particular, this carbon center should be saturated, having single bonds to three other atoms....
and gambling. At the same time that the Court applied this more relaxed scrutiny to some commercial speech cases, it applied more rigorous scrutiny to others.
Subsequent history
In 1987, the implications of the decision were raised when the American Bar AssociationAmerican Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
was considering a proposal to support extending the ban on tobacco advertising to all media, even though the act of smoking was legal. In the courtroom, the case was cited as precedent in two 1990s Supreme Court cases testing alcohol-related laws: Rubin v. Coors Brewing Co. (1995) and 44 Liquormart, Inc. v. Rhode Island
44 Liquormart, Inc. v. Rhode Island
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 , was a United States Supreme Court case, which declared that a law banning the advertisement of alcohol except at the place of sale as unconstitutional and a violation of the First Amendment....
(1996). According to attorney Bruce Ennis, Rubin "put the nail in the coffin of the Posadas decision" when the court unanimously decided that it was unconstitutional to prohibit the display of alcoholic content on beer labels. However, Posadas was not overturned then nor when it was raised during 44 Liquormarts successful challenge to a law banning publication of liquor prices in Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, even though Justices Stevens, Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, and Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
all called for it to be overruled. Even though she did not call for overruling, Justice O'Conner—whose opinion was signed by Rehnquist, Steven Breyer and David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
—stated that the Court had properly ignored Posadas in determining subsequent cases. Although Freedom of Commercial Speech posits this decision as a "rebounding" from the Posadas decision, it noted that 44 Liquormart nevertheless reaffirmed the Court's opinion that commercial speech was less deserving of constitutional protection than non-commercial speech.
In 1999, it became precedent in another Supreme Court case involving gambling advertisement, Greater New Orleans Broadcasting Association v. U.S., which challenged the Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
's right to restrict advertisement on games of chance with the justification that such restrictions would reduce gambling, given that advertisements for such games of chance as state lotteries
Lotteries in the United States
Lotteries in the United States are run by 46 jurisdictions; 43 states, plus the District of Columbia, Puerto Rico, and the US Virgin Islands.In the US, the lottery is subject to the laws of each jurisdiction; there is no national lottery.- History :...
and Native American gambling enterprises
Native American gambling enterprises
Native American gaming enterprises are gaming businesses operated on Indian reservations or tribal land in the United States. Indian tribes have limited sovereignty over these businesses and therefore are granted the ability to establish gambling enterprises outside of direct state...
were allowed in all states and all gambling advertisement had been permitted by the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
in nine. At issue was whether the state of Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
could restrict the advertisement to its residents of legal private casinos. In its hearing of that case, the United States Court of Appeals for the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
affirmed that the prohibition was constitutional based on Posadas, but the Supreme Court held rather that private casinos must be permitted to advertise to residents since gambling was legal in that state. However, as of 2007, Posadas had still not been properly overturned.
See also
- List of United States Supreme Court cases, volume 478
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court