Getting an edge: it looks like advertisers have won another commercial speech victory before the Supreme Court - even without a case being decided By Alan Pell Crawfor

In what passes for levity in the solemn sanct

His observation was not without import. Elizabeth City, N.C., is the town where Edge Broadcasting’s Power 94 radio station received its license, which the FCC wants to jerk for its airing of Virginia lottery ads. Scalia’s point, echoed by other justices, was this: 90% of the station’s audience is outside Elizabeth City, which, all by its lonesome, is unlikely to support a station. Lots of its listeners are Virginians. And many of them are Tarheels who drive from North Carolina– where gambling is illegal–to Virginia and buy their lottery tickets there.
Curious questions come to mind. Does the fact that Power 94 is licensed to serve the interests of Elizabeth City prohibit it from serving others? Does the fact that North Carolina has outlawed gambling allow it to outlaw ads for gambling?
Probably not, considering the pattern of recent court rulings. In March, as readers of this column will recall, the high court in Cincinnati v. Discovery Network struck down that city’s ban on news racks for real estate guides and other giveaway shoppers. Then, in late April, the court in Edenfield v. Fane torpedoed Florida’s prohibition of telephone solicitations by accountants.
Writing for the majority, Justice Anthony Kennedy opined that Fane, a CPA, “seeks to communicate no more than truthful, non-deceptive information proposing a lawful commercial transaction.” As such, he’s well within his First Amendment rights. “The commercial marketplace . . . provides a forum where ideas and information flourish,” Kennedy continued. “Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented.”
How Edge Broadcasting will be decided is anybody’s guess, however. A ruling isn’t expected until late summer or early fall. But the intellectual case for commercial speech protection has grown so strong that insiders aren’t especially worried about Edge one way or the other. “I was not terribly impressed with the way the station argued its case, and I suspect the court may rule against it on the facts,” says John Kamp, an ex-FCC attorney now with the 4A’s. “But I’m less concerned with how they come down on the facts of this case than on how they get there. And I’m encouraged by the justices’ response to one of the government’s arguments.”
That’s the argument based on the 1986 Posadas case, in which the court examined–and upheld– Puerto Rico’s ban on domestic ads for casinos that cater to tourists. It was in that case that Chief Justice William Rehnquist set out the pernicious doctrine that if an activity can be regulated, then speech about that activity can also be regulated. And, presumably, banned.
When the government argued its case in Edge based on Posadas, none of the justices (Rehnquist excepted) seemed persuaded. So if they do rule against the station, they’ll do it on other grounds, most likely those of Central Hudson. In that 1980 case, the court established the rules under which commercial speech can be restricted–rules that subsequently have been restricted as well.
The test now goes like this: The government itself bears the burden of proof that laws limiting commercial speech are not only effective, but that they are “narrowly tailored” to the purposes for which they are passed. “If the court rules against Edge through a proper application of Central Hudson, that’s acceptable to me,” says Kamp. “Their abandonment of Posadas and reliance instead on Central Hudson is itself a victory.”
The Central Hudson rules, as tightened up in the Cincinnati news rack case, should sink rafts of ill-conceived legislation lusted after by the meddlesome. Like Joe Kennedy’s bill that would require rotating messages on all booze ads. He wants warnings, for instance, that it’s illegal to drink if you’re not 21. In a March press conference, however, the Massachusetts Democrat admitted that most Americans already know–to offer a second example– that it’s against the law to drink and drive. He conceded, too, that there’s not a kid in college today who doesn’t know what the drinking age is.
That being the case, the bill is unconstitutional by Kennedy’s own admission. If the goal is to cut down on problem drinking, mandatory messages telling people what they already know can hardly be considered “narrowly tailored.” It’s another question, of course, if the government’s goal is merely to nag.
Copyright Adweek L.P. (1993)