OCTOBER TERM, 1992
Syllabus
UNITED STATES ET AL.
v. EDGE BROADCASTING CO., T/A POWER
94
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 92-486. Argued April 21, 1993-Decided June 25,1993
Congress has enacted federal lottery legislation to assist
States in their efforts to control this form of gambling. Among
other things, the scheme generally prohibits the broadcast of any
lottery advertisements, 18 U. S. C. § 1304, but allows broadcasters
to advertise state-run lotteries on stations licensed to a State
which conducts such lotteries, § 1307. This exemption was enacted
to accommodate the operation of legally authorized state-run
lotteries consistent with continued federal protection to
nonlottery States' policies. North Carolina is a nonlottery State,
while Virginia sponsors a lottery. Respondent broadcaster (Edge)
owns and operates a radio station licensed by the Federal
Communications Commission to serve a North Carolina community, and
it broadcasts from near the Virginia-North Carolina border. Over
90% of its listeners are in Virginia, but the remaining listeners
live in nine North Carolina counties. Wishing to broadcast Virginia
lottery advertisements, Edge filed this action, alleging that, as
applied to it, the restriction violated the First Amendment and the
Equal Protection Clause. The District Court assessed the
restriction under the four-factor test for commercial speech set
forth in
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N. Y.,
447 U. S. 557, 566-(1)
whether the speech 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
asserted interest and (4) whether it is not more extensive than is
necessary to serve the interest-concluding that the statutes, as
applied to Edge, did not directly advance the asserted governmental
interest. The Court of Appeals affirmed.
Held: The judgment is reversed.
956
F.2d 263, reversed.
JUSTICE WHITE delivered the opinion of the Court as to all but
Part III-D, concluding that the statutes regulate commercial speech
in a manner that does not violate the First Amendment. Pp. 426-435,
436.
(a) Since the statutes are constitutional under
Central
Hudson, this Court will not consider the Government's argument
that the Court need not proceed with a
Central Hudson
analysis because gambling implicates
419
no constitutionally protected right and the greater power to
prohibit it necessarily includes the lesser power to ban its
advertisement. This Court assumes that
Central Hudson's
first factor is met. As to the second factor, the Government has a
substantial interest in supporting the policy of nonlottery States
and not interfering in the policy of lottery States. Pp.
426-427.
(b) The question raised by the third
Central Hudson
factor cannot be answered by limiting the inquiry to whether the
governmental interest is directly advanced as applied to a single
entity, for even if it were not, there would remain the matter of a
regulation's general application to others. Thus, the statutes'
validity as applied to Edge, although relevant, is properly
addressed under the fourth factor. The statutes directly advance
the governmental interest at stake as required by the third factor.
Rather than favoring lottery or nonlottery States, Congress chose
to support nonlottery States' antigambling policy without unduly
interfering with the policy of lottery States. Although Congress
surely knew that stations in one State could be heard in another,
it made a commonsense judgment that each North Carolina station
would have an audience in that State, even if its signal reached
elsewhere, and that enforcing the restriction would insulate each
station's listeners from lottery advertising and advance the
governmental purpose in supporting North Carolina's gambling laws.
Pp. 427-429.
(c) Under the fourth
Central Hudson factor, the statutes
are valid as applied to Edge. The validity of commercial speech
restrictions should be judged by standards no more stringent than
those applied to expressive conduct entitled to full First
Amendment protection or to relevant time, place, or manner
restrictions,
Board of Trustees of State Univ. of N. Y. v.
Fox, 492 U. S.
469, 477-478; the fit between the restriction and the
government interest need only be reasonable,
id., at 480.
Here, the fit is reasonable. Allowing Edge to carry the lottery
advertisements to North Carolina counties would be in derogation of
the federal interest in supporting the State's antilottery laws and
would permit Virginia's lottery laws to dictate what stations in a
neighboring State may air. The restriction's validity is judged by
the relation it bears to the general problem of accommodating both
lottery and nonlottery States, not by the extent to which it
furthers the Government's interest in an individual case.
Ward v.
Rock Against Racism, 491 U. S. 781, 801.
Nothing in
Edenfield v.
Fane, 507 U. S. 761, suggested
that an individual could challenge a commercial speech regulation
as applied only to himself or his own acts. Pp.429-431.
(d) The courts below also erred in holding that the restriction
as applied to Edge was ineffective and gave only remote support to
the Government's
420
interest. The exclusion of gambling invitations from an
estimated 11% of the radio listening time in the nine-county area
could hardly be called "ineffective," "remote," or "conditional."
See
Central Hudson, supra, at 564, 569. Nor could it be
called only "limited incremental support,"
Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 73, for the
Goverment interest, or thought to furnish only speculative or
marginal support. The restriction is not made ineffective by the
fact that Virginia radio and television stations with lottery
advertising can be heard in North Carolina. Many residents of the
nine-county area will still be exposed to very few or no such
advertisements. Moreover, the Government may be said to advance its
purpose by substantially reducing lottery advertising, even where
it is not wholly eradicated. Pp.431-435.
WHITE, J., delivered the opinion of the Court with respect to
Parts I, II, and IV, in which REHNQUIST, C. J., and O'CONNOR,
SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined, the opinion of
the Court with respect to Parts III-A and III-B, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined,
the opinion of the Court with respect to Part III-C, in which
REHNQUIST, C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined, and
an opinion with respect to Part III-D, in which REHNQUIST, C. J.,
and SCALIA and THOMAS, JJ., joined. SOUTER, J., filed an opinion
concurring in part, in which KENNEDY, J., joined,
post, p.
436. STEVENS, J., filed a dissenting opinion, in which BLACKMUN,
J., joined,
post, p. 436.
Paul J. Larkin, Jr., argued the cause for
petitioners.
With him on the briefs were Solicitor General Starr, Acting
Solicitor General Bryson, Assistant Attorney General Gerson, and
Deputy Solicitor General Roberts.
Conrad M. Shumadine argued the cause for respondent.
With him on the brief was
Walter D. Kelley, Jr.
*
*Briefs of amici curiae urging affirmance were filed for the
Association of National Advertisers, Inc., et al. by Burt Neuborne
and Gilbert H. Weil; and for the National Association of
Broadcasters et al. by P. Cameron DeVore, Marshall
J.
Nelson, John Kamp, Steven R. Shapiro, John A. Powell, Barbara W
Wall, Kenneth M. Vittor, Slade fl. Metcalf, Richard E. Wiley, David
P. Fleming, John F. Sturm, Rene P. Milam, Mark
J. Prak, L.
Stanley Paige, Bruce W Sanford, and Henry S. Hoberman.
421
JUSTICE WHITE delivered the opinion of the Court, except as to
Part III-D.*
In this case we must decide whether federal statutes that
prohibit the broadcast of lottery advertising by a broadcaster
licensed to a State that does not allow lotteries, while allowing
such broadcasting by a broadcaster licensed to a State that
sponsors a lottery, are, as applied to respondent, consistent with
the First Amendment.
I
While lotteries have existed in this country since its founding,
States have long viewed them as a hazard to their citizens and to
the public interest, and have long engaged in legislative efforts
to control this form of gambling. Congress has, since the early
19th century, sought to assist the States in controlling lotteries.
See,
e. g., Act of Mar. 2, 1827, § 6, 4 Stat. 238;
Act of July 27, 1868, § 13, 15 Stat. 196; Act of June 8, 1872, §
149, 17 Stat. 302. In 1876, Congress made it a crime to deposit in
the mails any letters or circulars concerning lotteries, whether
illegal or chartered by state legislatures. See Act of July 12,
1876, ch. 186, § 2, 19 Stat. 90, codified at Rev. Stat. § 3894 (2d
ed. 1878). This Court rejected a challenge to the 1876 Act on First
Amendment grounds in
Ex parte Jackson, 96 U. S. 727 (1878). In
response to the persistence of lotteries, particularly the
Louisiana Lottery, Congress closed a loophole allowing the
advertisement of lotteries in newspapers in the Anti-Lottery Act of
1890, ch. 908, § 1, 26 Stat. 465, codified at Supp. to Rev. Stat. §
3894 (2d ed. 1891), and this Court upheld that Act against a First
Amendment challenge in
In re Rapier, 143
*JUSTICE O'CONNOR joins Parts I, II, III-A, III-B, and IV of
this opinion. JUSTICE SCALIA joins all but Part III-C of this
opinion. JUSTICE KENNEDY joins Parts I, II, III-C, and IV of this
opinion. JUSTICE SOUTER joins all but Parts III-A, III-B, and III-D
of this opinion.
422
u. S. 110 (1892). When the Louisiana Lottery moved its
operations to Honduras, Congress passed the Act of Mar. 2, 1895, 28
Stat. 963, 18 U. S. C. § 1301, which outlawed the transportation of
lottery tickets in interstate or foreign commerce. This Court
upheld the constitutionality of that Act against a claim that it
exceeded Congress' power under the Commerce Clause in
Lottery
Case, 188 U. S.
321 (1903). This federal antilottery legislation remains in
effect. See 18 U. S. C. §§ 1301, 1302.
After the advent of broadcasting, Congress extended the federal
lottery control scheme by prohibiting, in § 316 of the
Communications Act of 1934, 48 Stat. 1088, the broadcast of "any
advertisement of or information concerning any lottery, gift
enterprise, or similar scheme." 18 U. S. C. § 1304, as amended by
the Charity Games Advertising Clarification Act of 1988, Pub. L.
100-625, §3(a)(4), 102 Stat. 3206.1 In 1975, Congress amended the
statutory scheme to allow newspapers and broadcasters to advertise
state-run lotteries if the newspaper is published in or the
broadcast station is licensed to a State which conducts a state-run
lottery. See 18 U. S. C. § 1307 (1988 ed., Supp. III).2 This
exemption was
1 Title 18 U. S. C. § 1304 (1988 ed., Supp. III) provides:
"Broadcasting lottery information
''Whoever broadcasts by means of any radio or television station
for which a license is required by any law of the United States, or
whoever, operating any such station, knowingly permits the
broadcasting of, any advertisement of or information concerning any
lottery, gift enterprise, or similar scheme, offering prizes
dependent in whole or in part upon lot or chance, or any list of
the prizes drawn or awarded by means of any such lottery, gift
enterprise, or scheme, whether said list contains any part or all
of such prizes, shall be fined not more than $1,000 or imprisoned
not more than one year, or both."
2 Title 18 U. S. C. § 1307 (1988 ed. and Supp. III) provides in
relevant part:
"Exceptions relating to certain advertisements and other
information and to State-conducted lotteries
"(a) The provisions of sections 1301, 1302, 1303, and 1304 shall
not apply to-
423
enacted "to accommodate the operation of legally authorized
State-run lotteries consistent with continued Federal protection to
the policies of non-lottery States." S. Rep. No. 931404, p. 2
(1974). See also H. R. Rep. No. 93-1517, p. 5 (1974).
North Carolina does not sponsor a lottery, and participating in
or advertising nonexempt raffles and lotteries is a crime under its
statutes. N. C. Gen. Stat. §§ 14-289 and 14291 (1986 and Supp.
1992). Virginia, on the other hand, has chosen to legalize
lotteries under a state monopoly and has entered the marketplace
vigorously.
Respondent, Edge Broadcasting Company (Edge), owns and operates
a radio station licensed by the Federal Communications Commission
(FCC) to Elizabeth City, North Carolina. This station, known as
"Power 94," has the call letters WMYK-FM and broadcasts from
Moyock, North Carolina, which is approximately three miles from the
border between Virginia and North Carolina and considerably closer
to Virginia than is Elizabeth City. Power 94 is one of 24 radio
stations serving the Hampton Roads, Virginia, metropolitan area;
92.2% of its listening audience are Virginians; the rest, 7.8%,
reside in the nine North Carolina counties served by
"(1) an advertisement, list of prizes, or other information
concerning a lottery conducted by a State acting under the
authority of State law which is-
"(A) contained in a publication published in that State or in a
State which conducts such a lottery; or
"(B) broadcast by a radio or television station licensed to a
location in that State or a State which conducts such a lottery;
or
"(2) an advertisement, list of prizes, or other information
concerning a lottery, gift enterprise, or similar scheme, other
than one described in paragraph (1), that is authorized or not
otherwise prohibited by the State in which it is conducted and
which is-
"(A) conducted by a not-for-profit organization or a
governmental organization; or
"(B) conducted as a promotional activity by a commercial
organization and is clearly occasional and ancillary to the primary
business of that organization. "
424
Power 94. Because Edge is licensed to serve a North Carolina
community, the federal statute prohibits it from broadcasting
advertisements for the Virginia lottery. Edge derives 95% of its
advertising revenue from Virginia sources, and claims that it has
lost large sums of money from its inability to carry Virginia
lottery advertisements.
Edge entered federal court in the Eastern District of Virginia,
seeking a declaratory judgment that, as applied to it, §§ 1304 and
1307, together with corresponding FCC regulations, violated the
First Amendment to the Constitution and the Equal Protection Clause
of the Fourteenth, as well as injunctive protection against the
enforcement of those statutes and regulations.
The District Court recognized that Congress has greater latitude
to regulate broadcasting than other forms of communication. App. to
Pet. for Cert. 14a-15a. The District Court construed the statutes
not to cover the broadcast of noncommercial information about
lotteries, a construction that the Government did not oppose. With
regard to the restriction on advertising, the District Court
evaluated the statutes under the established four-factor test for
commercial speech set forth in
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y.,
447 U. S. 557,
566 (1980):
"At the outset, we must determine whether the expression is
protected by the First Amendment. [1] For commercial speech to come
within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask [2] whether the asserted
governmental interest is substantial. If both inquiries yield
positive answers, we must determine [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."
Assuming that the advertising Edge wished to air would deal with
the Virginia lottery, a legal activity, and would not be
misleading, the court went on to hold that the second and
425
fourth
Central Hudson factors were satisfied: the
statutes were supported by a substantial governmental interest, and
the restrictions were no more extensive than necessary to serve
that interest, which was to discourage participating in lotteries
in States that prohibited lotteries. The court held, however, that
the statutes, as applied to Edge, did not directly advance the
asserted governmental interest, failed the
Central Hudson
test in this respect, and hence could not be constitutionally
applied to Edge. A divided Court of Appeals, in an unpublished
per curiam opinion,3 affirmed in all respects, also
rejecting the Government's submission that the District Court had
erred in judging the validity of the statutes on an "as applied"
standard, that is, determining whether the statutes directly served
the governmental interest in a substantial way solely on the effect
of applying them to Edge. Judgt. order reported at
956 F.2d
263 (CA41992).
Because the court below declared a federal statute
unconstitutional and applied reasoning that was questionable under
our cases relating to the regulation of commercial speech, we
granted certiorari. 506 U. S. 1032 (1992). We reverse.
II
The Government argues first that gambling implicates no
constitutionally protected right, but rather falls within a
category of activities normally considered to be "vices," and that
the greater power to prohibit gambling necessarily includes the
lesser power to ban its advertisement; it argues that we therefore
need not proceed with a
Central Hudson analysis. The Court
of Appeals did not address this issue and neither do we, for the
statutes are not unconstitutional under the standards of
Central
Hudson applied by the courts below.
3We deem it remarkable and unusual that although the Court of
Appeals affirmed a judgment that an Act of Congress was
unconstitutional as applied, the court found it appropriate to
announce its judgment in an unpublished
per curiam
opinion.
426
III
For most of this Nation's history, purely commercial advertising
was not considered to implicate the constitutional protection of
the First Amendment. See
Valentine v.
Chrestensen,
316 U. S. 52, 54
(1942). In 1976, the Court extended First Amendment protection to
speech that does no more than propose a commercial transaction. See
Virginia State Bd. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc., 425 U. S. 748 (1976). Our
decisions, however, have recognized the "'common-sense' distinction
between speech proposing a commercial transaction, which occurs in
an area traditionally subject to government regulation, and other
varieties of speech."
Ohralik v.
Ohio State Bar Assn.,
436 U. S. 447, 455-456 (1978). The Constitution therefore
affords a lesser protection to commercial speech than to other
constitutionally guaranteed expression.
Board of Trustees of
State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 477
(1989);
Central Hudson, supra, at 563;
Ohralik,
supra, at 456.
In
Central Hudson, we set out the general scheme for
assessing government restrictions on commercial speech. 447 U. S.,
at 566. Like the courts below, we assume that Edge, if allowed to,
would air nonmisleading advertisements about the Virginia lottery,
a legal activity. As to the second
Central Hudson factor, we
are quite sure that the Government has a substantial interest in
supporting the policy of nonlottery States, as well as not
interfering with the policy of States that permit lotteries. As in
Posadas de Puerto Rico Associates v.
Tourism Co. of P.
R., 478 U. S.
328 (1986), the activity underlying the relevant
advertising-gamblingimplicates no constitutionally protected right;
rather, it falls into a category of "vice" activity that could be,
and frequently has been, banned altogether. As will later be
discussed, we also agree that the statutes are no broader than
necessary to advance the Government's interest and hence the fourth
part of the
Central Hudson test is satisfied.
427
The Court of Appeals, however, affirmed the District Court's
holding that the statutes were invalid because, as applied to Edge,
they failed to advance directly the governmental interest
supporting them. According to the Court of Appeals, whose judgment
we are reviewing, this was because the 127,000 people who reside in
Edge's nine-county listening area in North Carolina receive most of
their radio, newspaper, and television communications from
Virginiabased media. These North Carolina residents who might
listen to Edge "are inundated with Virginia's lottery
advertisements" and hence, the court stated, prohibiting Edge from
advertising Virginia's lottery "is ineffective in shielding North
Carolina residents from lottery information." This "ineffective or
remote measure to support North Carolina's desire to discourage
gambling cannot justify infringement upon commercial free speech."
App. to Pet. for Cert. 6a, 7a. In our judgment, the courts below
erred in that respect.
A
The third
Central Hudson factor asks whether the
"regulation directly advances the governmental interest asserted."
447 U. S., at 566. It is readily apparent that this question cannot
be answered by limiting the inquiry to whether the governmental
interest is directly advanced as applied to a single person or
entity. Even if there were no advancement as applied in that
manner-in this case, as applied to Edge-there would remain the
matter of the regulation's general application to others-in this
case, to all other radio and television stations in North Carolina
and countrywide. The courts below thus asked the wrong question in
ruling on the third
Central Hudson factor. This is not to
say that the validity of the statutes' application to Edge is an
irrelevant inquiry, but that issue properly should be dealt with
under the fourth factor of the
Central Hudson test. As we
have said, "[t]he last two steps of the
Central Hudson
analysis basically involve a consideration of the 'fit' between
428
the legislature's ends and the means chosen to accomplish those
ends."
Posadas, supra, at 341.
We have no doubt that the statutes directly advanced the
governmental interest at stake in this case. In response to the
appearance of state-sponsored lotteries, Congress might have
continued to ban all radio or television lottery advertisements,
even by stations in States that have legalized lotteries. This it
did not do. Neither did it permit stations such as Edge, located in
a nonlottery State, to carry lottery ads if their signals reached
into a State that sponsors lotteries; similarly, it did not forbid
stations in a lottery State such as Virginia from carrying lottery
ads if their signals reached into an adjoining State such as North
Carolina where lotteries were illegal. Instead of favoring either
the lottery or the nonlottery State, Congress opted to support the
antigambling policy of a State like North Carolina by forbidding
stations in such a State to air lottery advertising. At the same
time it sought not to unduly interfere with the policy of a
lottery-sponsoring State such as Virginia. Virginia could advertise
its lottery through radio and television stations licensed to
Virginia locations, even if their signals reached deep into North
Carolina. Congress surely knew that stations in one State could
often be heard in another but expressly prevented each and every
North Carolina station, including Edge, from carrying lottery ads.
Congress plainly made the commonsense judgment that each North
Carolina station would have an audience in that State, even if its
signal reached elsewhere and that enforcing the statutory
restriction would insulate each station's listeners from lottery
ads and hence advance the governmental purpose of supporting North
Carolina's laws against gambling. This congressional policy of
balancing the interests of lottery and nonlottery States is the
substantial governmental interest that satisfies
Central
Hudson, the interest which the courts below did not fully
appreciate. It is also the interest that is directly served by
applying the statutory restriction to all
429
stations in North Carolina; and this would plainly be the case
even if, as applied to Edge, there were only marginal advancement
of that interest.
B
Left unresolved, of course, is the validity of applying the
statutory restriction to Edge, an issue that we now address under
the fourth
Central Hudson factor, i.
e., whether the
regulation is more extensive than is necessary to serve the
governmental interest. We revisited that aspect of
Central
Hudson in
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469 (1989), and
concluded that the validity of restrictions on commercial speech
should not be judged by standards more stringent than those applied
to expressive conduct entitled to full First Amendment protection
or to relevant time, place, or manner restrictions.
Id., at
477478. We made clear in
Fox that our commercial speech
cases require a fit between the restriction and the government
interest that is not necessarily perfect, but reasonable.
Id., at 480. This was also the approach in
Posadas,
478 U. S., at 344.
We have no doubt that the fit in this case was a reasonable one.
Although Edge was licensed to serve the Elizabeth City area, it
chose to broadcast from a more northerly position, which allowed
its signal to reach into the Hampton Roads, Virginia, metropolitan
area. Allowing it to carry lottery ads reaching over 90% of its
listeners, all in Virginia, would surely enhance its revenues. But
just as surely, because Edge's signals with lottery ads would be
heard in the nine counties in North Carolina that its broadcasts
reached, this would be in derogation of the substantial federal
interest in supporting North Carolina's laws making lotteries
illegal. In this posture, to prevent Virginia's lottery policy from
dictating what stations in a neighboring State may air, it is
reasonable to require Edge to comply with the restriction against
carrying lottery advertising. In other words, applying the
restriction to a broadcaster such as Edge directly
430
advances the governmental interest in enforcing the restriction
in nonlottery States, while not interfering with the policy of
lottery States like Virginia. We think this would be the case even
if it were true, which it is not, that applying the general
statutory restriction to Edge, in isolation, would no more than
marginally insulate the North Carolinians in the North Carolina
counties served by Edge from hearing lottery ads.
In
Ward v.
Rock Against Racism, 491 U. S. 781 (1989), we
dealt with a time, place, or manner restriction that required the
city to control the sound level of musical concerts in a city park,
concerts that were fully protected by the First Amendment. We held
there that the requirement of narrow tailoring was met if "the ...
regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation," provided that it
did not burden substantially more speech than necessary to further
the government,s legitimate interests.
Id., at 799 (internal
quotation marks omitted). In the course of upholding the
restriction, we went on to say that "the validity of the regulation
depends on the relation it bears to the overall problem the
government seeks to correct, not on the extent to which it furthers
the government's interest in an individual case."
Id., at
80l.
The
Ward holding is applicable here, for we have observed
that the validity of time, place, or manner restrictions is
determined under standards very similar to those applicable in the
commercial speech context and that it would be incompatible with
the subordinate position of commercial speech in the scale of First
Amendment values to apply a more rigid standard to commercial
speech than is applied to fully protected speech.
Fox,
supra, at 477, 478.
Ward thus teaches us that we judge
the validity of the restriction in this case by the relation it
bears to the general problem of accommodating the policies of both
lottery and nonlottery States, not
431
by the extent to which it furthers the Government's interest in
an individual case.
This is consistent with the approach we have taken in the
commercial speech context. In
Ohralik v.
Ohio State
Bar Assn., 436 U. S., at 462, for example, an attorney attacked
the validity of a rule against solicitation "not facially, but as
applied to his acts of solicitation." We rejected the appellant's
view that his "as applied" challenge required the State to show
that his particular conduct in fact trenched on the interests that
the regulation sought to protect. We stated that in the general
circumstances of the appellant's acts, the State had "a strong
interest in adopting and enforcing rules of conduct designed to
protect the public."
Id., at 464. This having been
established, the State was entitled to protect its interest by
applying a prophylactic rule to those circumstances generally; we
declined to require the State to go further and to prove that the
state interests supporting the rule actually were advanced by
applying the rule in Ohralik's particular case.
Edenfield v.
Fane, 507 U. S. 761 (1993), is
not to the contrary. While treating Fane's claim as an as applied
challenge to a broad category of commercial solicitation, we did
not suggest that Fane could challenge the regulation on commercial
speech as applied only to himself or his own acts of
solicitation.
C
We also believe that the courts below were wrong in holding that
as applied to Edge itself, the restriction at issue was ineffective
and gave only remote support to the Government's interest.
As we understand it, both the Court of Appeals and the District
Court recognized that Edge's potential North Carolina audience was
the 127,000 residents of nine North Carolina counties, that enough
of them regularly or from time to time listen to Edge to account
for 11 % of all radio listening in those counties, and that while
listening to Edge they heard
432
no lottery advertisements. It could hardly be denied, and
neither court below purported to deny, that these facts, standing
alone, would clearly show that applying the statutory restriction
to Edge would directly serve the statutory purpose of supporting
North Carolina's antigambling policy by excluding invitations to
gamble from 11% of the radio listening time in the nine-county
area. Without more, this result could hardly be called either
"ineffective," "remote," or "conditional," see
Central
Hudson, 447 U. S., at 564, 569. Nor could it be called only
"limited incremental support,"
Bolger v.
Youngs Drug
Products Corp., 463 U. S. 60, 73 (1983),
for the Government interest, or thought to furnish only speculative
or marginal support. App. to Pet. for Cert. 24a,25a. Otherwise, any
North Carolina radio station with 127,000 or fewer potential
listeners would be permitted to carry lottery ads because of its
marginal significance in serving the State's interest.
Of course, both courts below pointed out, and rested their
judgment on the fact, that the 127,000 people in North Carolina who
might listen to Edge also listened to Virginia radio stations and
television stations that regularly carried lottery ads. Virginia
newspapers carrying such material also were available to them. This
exposure, the courts below thought, was sufficiently pervasive to
prevent the restriction on Edge from furnishing any more than
ineffective or remote support for the statutory purpose. We
disagree with this conclusion because in light of the facts relied
on, it represents too limited a view of what amounts to direct
advancement of the governmental interest that is present in this
case.
Even if all of the residents of Edge's North Carolina service
area listen to lottery ads from Virginia stations, it would still
be true that 11% of radio listening time in that area would remain
free of such material. If Edge is allowed to advertise the Virginia
lottery, the percentage of listening time carrying such material
would increase from 38% to 49%.
433
We do not think that
Central Hudson compels us to
consider this consequence to be without significance.
The Court of Appeals indicated that Edge's potential audience of
127,000 persons were "inundated" by the Virginia media carrying
lottery advertisements. But the District Court found that only 38%
of all radio listening in the ninecounty area was directed at
stations that broadcast lottery advertising.4 With respect to
television, the District Court observed that American adults spend
60% of their media consumption time listening to, or watching,
television. The evidence before it also indicated that in four of
the nine counties served by Edge, 75% of all television viewing was
directed at Virginia stations; in three others, the figure was
between 50 and 75%; and in the remaining two counties, between 25
and 50%. Even if it is assumed that all of these stations carry
lottery advertising, it is very likely that a great many people in
the nine-county area are exposed to very little or no lottery
advertising carried on television. Virginia newspapers are also
circulated in Edge's area, 10,400 daily and 12,500 on Sundays,
hardly enough to constitute a pervasive exposure to lottery
advertising, even on the unlikely assumption that the readers of
those newspapers always look for and read the lottery ads. Thus the
District Court observed only that "a
significant number of
residents of [the ninecounty] area listens to" Virginia radio and
television stations and read Virginia newspapers. App. to Pet. for
Cert. 25a (emphasis added).
Moreover, to the extent that the courts below assumed that §§
1304 and 1307 would have to effectively shield North Carolina
residents from information about lotteries to advance their
purpose, they were mistaken. As the Government asserts, the
statutes were not "adopt[ed] ... to keep
4 It would appear, then, that 51% of the radio listening time in
the relevant nine counties is attributable to other North Carolina
stations or other stations not carrying lottery advertising.
434
North Carolina residents ignorant of the Virginia Lottery for
ignorance's sake," but to accommodate nonlottery States' interest
in discouraging public participation in lotteries, even as they
accommodate the countervailing interests of lottery States. Reply
Brief for Petitioners 11. Within the bounds of the general
protection provided by the Constitution to commercial speech, we
allow room for legislative judgments.
Fox, 492 U. S., at
480. Here, as in
Posadas de Puerto Rico, the Government
obviously legislated on the premise that the advertising of
gambling serves to increase the demand for the advertised product.
See
Posadas, 478 U. S., at 344. See also
Central Hudson,
supra, at 569. Congress clearly was entitled to determine that
broadcast of promotional advertising of lotteries undermines North
Carolina's policy against gambling, even if the North Carolina
audience is not wholly unaware of the lottery's existence. Congress
has, for example, altogether banned the broadcast advertising of
cigarettes, even though it could hardly have believed that this
regulation would keep the public wholly ignorant of the
availability of cigarettes. See 15 U. S. C. § 1335. See also
Queensgate Investment Co. v.
Liquor Control Comm'n,
69 Ohio St. 2d 361, 366, 433 N. E. 138, 142 (alcohol
advertising), app. dism'd for want of a substantial federal
question, 459 U. S. 807 (1982). Nor do we require that the
Government make progress on every front before it can make progress
on any front. If there is an immediate connection between
advertising and demand, and the federal regulation decreases
advertising, it stands to reason that the policy of decreasing
demand for gambling is correspondingly advanced. Accordingly, the
Government may be said to advance its purpose by substantially
reducing lottery advertising, even where it is not wholly
eradicated.
Thus, even if it were proper to conduct a
Central Hudson
analysis of the statutes only as applied to Edge, we would not
agree with the courts below that the restriction at issue
435
here, which prevents Edge from broadcasting lottery advertising
to its sizable radio audience in North Carolina, is rendered
ineffective by the fact that Virginia radio and television programs
can be heard in North Carolina. In our view, the restriction, even
as applied only to Edge, directly advances the governmental
interest within the meaning of
Central Hudson.
D
Nor need we be blind to the practical effect of adopting
respondent's view of the level of particularity of analysis
appropriate to decide its case. Assuming for the sake of argument
that Edge had a valid claim that the statutes violated
Central
Hudson only as applied to it, the piecemeal approach it
advocates would act to vitiate the Government's ability generally
to accommodate States with differing policies. Edge has chosen to
transmit from a location near the border between two jurisdictions
with different rules, and rests its case on the spillover from the
jurisdiction across the border. Were we to adopt Edge's approach,
we would treat a station that is close to the line as if it were on
the other side of it, effectively extending the legal regime of
Virginia inside North Carolina. One result of holding for Edge on
this basis might well be that additional North Carolina
communities, farther from the Virginia border, would receive
broadcast lottery advertising from Edge. Broadcasters licensed to
these communities, as well as other broadcasters serving Elizabeth
City, would then be able to complain that lottery advertising from
Edge and other similar broadcasters renders the federal statute
ineffective as applied to them. Because the approach Edge advocates
has no logical stopping point once state boundaries are ignored,
this process might be repeated until the policy of supporting North
Carolina's ban on lotteries would be seriously eroded. We are
unwilling to start down that road.
436
IV
Because the statutes challenged here regulate commercial speech
in a manner that does not violate the First Amendment, the judgment
of the Court of Appeals is
Reversed.
JUSTICE SOUTER, with whom JUSTICE KENNEDY joins, concurring in
part.
I agree with the Court that the restriction at issue here is
constitutional under our decision in
Central Hudson Gas
& Elec. Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S.
557 (1980), even if that restriction is judged "as applied to
Edge itself."
Ante, at 431. I accordingly believe it
unnecessary to decide whether the restriction might appropriately
be reviewed at a more lenient level of generality, and I take no
position on that question.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
Three months ago this Court reaffirmed that the proponents of a
restriction on commercial speech bear the burden of demonstrating a
"reasonable fit" between the legislature's goals and the means
chosen to effectuate those goals. See
Cincinnati v.
Discovery Network, Inc., 507 U. S. 410, 416
(1993). While the" 'fit' " between means and ends need not be
perfect, an infringement on constitutionally protected speech must
be "'in proportion to the interest served.'"
Id., at 417, n.
12 (quoting
Board of Trustees of State Univ. of N.
Y.
v.
Fox, 492 U.
S. 469, 480 (1989)). In my opinion, the Federal Government's
selective ban on lottery advertising unquestionably flunks that
test; for the means chosen by the Government, a ban on speech
imposed for the purpose of manipulating public behavior, is in no
way proportionate to the Federal Government's asserted interest in
protecting the antilottery policies of nonlottery States.
Accordingly, I respectfully dissent.
437
As the Court acknowledges, the United States does not assert a
general interest in restricting state-run lotteries. Indeed, it
could not, as it has affirmatively removed restrictions on use of
the airwaves and mails for the promotion of such lotteries. See
ante, at 421-423. Rather, the federal interest in this case
is entirely derivative. By tying the right to broadcast advertising
regarding a state-run lottery to whether the State in which the
broadcaster is located itself sponsors a lottery, Congress sought
to support nonlottery States in their efforts to "discourag[e]
public participation in lotteries."
Ante, at 422-423,
434.1
Even assuming that nonlottery States desire such assistance from
the Federal Government-an assumption that must be made without any
supporting evidence-I would hold that suppressing truthful
advertising regarding a neighboring State's lottery, an activity
which is, of course, perfectly legal, is a patently
unconstitutional means of effectuating the Government's asserted
interest in protecting the policies of nonlottery States. Indeed, I
had thought that we had so held almost two decades ago.
In
Bigelow v.
Virginia, 421 U. S. 809 (1975),
this Court recognized that a State had a legitimate interest in
protecting the welfare of its citizens as they ventured outside the
State's borders.
Id., at 824. We flatly rejected the notion,
however, that a State could effectuate that interest by suppressing
truthful, nonmisleading information regarding a legal activity in
another State. We held that a State "may
1 At one point in its opinion, the Court identifies the relevant
federal interest as "supporting North Carolina's laws making
lotteries illegal."
Ante, at 429. Of course, North Carolina
law does not, and, presumably, could not, bar its citizens from
traveling across the state line and participating in the Virginia
lottery. North Carolina law does not make the Virginia lottery
illegal. I take the Court to mean that North Carolina's decision
not to institute a state-run lottery reflects its policy judgment
that participation in such lotteries, even those conducted by
another State, is detrimental to the public welfare, and that 18 U.
S. C. § 1307 (1988 ed. and Supp. III) represents a federal effort
to respect that policy judgment.
438
not, under the guise of exercising internal police powers, bar a
citizen of another State from disseminating information about an
activity that is legal in that State."
Id., at 824-825. To
be sure, the advertising in
Bigelow related to abortion, a
constitutionally protected right, and the Court in
Posadas de
Puerto Rico Associates v.
Tourism Co. of P. R., 478 U. S. 328 (1986),
relied on that fact in dismissing the force of our holding in that
case, see
id., at 345. But even a casual reading of
Bigelow demonstrates that the case cannot fairly be read so
narrowly. The fact that the information in the advertisement
related to abortion was only one factor informing the Court's
determination that there were substantial First Amendment interests
at stake in the State's attempt to suppress truthful advertising
about a legal activity in another State:
"Viewed in its entirety, the advertisement conveyed information
of potential interest and value to a diverse audience-not only to
readers possibly in need of the services offered, but also to those
with a general curiosity about, or genuine interest in, the subject
matter or the law of another State and its development, and to
readers seeking reform in Virginia. The mere existence of the
[organization advertising abortion-related services] in New York
City, with the possibility of its being typical of other
organizations there, and the availability of the services offered,
were not unnewsworthy. Also the activity advertised pertained to
constitutional interests." Bigelow, 421 U. S., at 822.2
2 The analogy to
Bigelow and this case is even closer
than one might think. The North Carolina General Assembly is
currently considering whether to institute a state-operated
lottery. See 1993 N. C. S. Bill No. 11, 140th Gen. Assembly. As
with the advertising at issue in
Bigelow, then, advertising
relating to the Virginia lottery may be of interest to those in
North Carolina who are currently debating whether that State should
join the ranks of the growing number of States that sponsor a
lottery. See
infra, at 441.
439
Bigelow is not about a woman's constitutionally protected
right to terminate a pregnancy.3 It is about paternalism, and
informational protectionism. It is about one State's interference
with its citizens' fundamental constitutional right to travel in a
state of enlightenment, not governmentinduced ignorance. Cf.
Shapiro v.
Thompson, 394 U. S. 618, 629-631
(1969).4 I would reaffirm this basic First Amendment principle. In
seeking to assist nonlottery States in their efforts to shield
their citizens from the perceived dangers emanating from a
neighboring State's lottery, the Federal Government has not
regulated the content of such advertisements to ensure that they
are not misleading, nor has it provided for the distribution of
more speech, such as warnings or educational information about
gambling. Rather, the United States has selected the most
intrusive, and dangerous, form of regulation possible-a ban on
truthful information regarding a lawful activity imposed for the
purpose of manipulating, through ignorance, the consumer choices of
some of its citizens. Unless justified by a truly substantial
governmental interest, this extreme, and extremely paternalistic,
measure surely cannot withstand scrutiny under the First
Amendment.
3 If anything, the fact that underlying conduct is not
constitutionally protected increases, not decreases, the value of
unfettered exchange of information across state lines. When a State
has proscribed a certain product or service, its citizens are all
the more dependent on truthful information regarding the policies
and practices of other States. Cf.
Bray v.
Alexandria
Women's Health Clinic, 506 U. S. 263, 332 (1993)
(STEVENS, J., dissenting). The alternative is to view individuals
as more in the nature of captives of their respective States than
as free citizens of a larger polity.
4 "For all the great purposes for which the Federal government
was formed, we are one people, with one common country. We are all
citizens of the United States; and, as members of the same
community, must have the right to pass and repass through every
part of it without interruption, as freely as in our own States."
Passenger Cases, 7 How. 283, 492 (1849).
440
No such interest is asserted in this case. With barely a whisper
of analysis, the Court concludes that a State's interest in
discouraging lottery participation by its citizens is surely
"substantial"-a necessary prerequisite to sustain a restriction on
commercial speech, see
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y.,
447 U. S. 557,
566 (1980)-because gambling "falls into a category of 'vice'
activity that could be, and frequently has been, banned
altogether,"
ante, at 426.
I disagree. While a State may indeed have
an interest in
discouraging its citizens from participating in state-run
lotteries,5 it does not necessarily follow that its interest is
"substantial" enough to justify an infringement on constitutionally
protected speech,6 especially one as draconian as the regulation at
issue in this case. In my view, the sea change in public attitudes
toward state-run lotteries that this country has witnessed in
recent years undermines any claim that a State's interest in
discouraging its citizens from participating in state-run lotteries
is so substantial as to outweigh respondent's First Amendment right
to distribute, and the public's right to receive, truthful,
nonmisleading information about a perfectly legal activity
conducted in a neighboring State.
While the Court begins its opinion with a discussion of the
federal and state efforts in the 19th century to restrict
lotteries, it largely ignores the fact that today hostility to
state-run lotteries is the exception rather than the norm.
5 A State might reasonably conclude, for example, that lotteries
play on the hopes of those least able to afford to purchase lottery
tickets, and that its citizens would be better served by spending
their money on more promising investments. The fact that I happen
to share these concerns regarding state-sponsored lotteries is, of
course, irrelevant to the proper analysis of the legal issue.
6 See,
e. g., Cincinnati V.
Discovery
Network, Inc., 507 U. S. 410, 417, n. 13
(1993) (noting that restrictions on commercial speech are subject
to more searching scrutiny than mere "rational basis" review).
441
Thirty-four States and the District of Columbia now sponsor a
lottery. 7 Three more States will initiate lotteries this year.8 Of
the remaining 13 States, at least 5 States have recently considered
or are currently considering establishing a lottery.9 In fact, even
the State of North Carolina, whose antilottery policies the Federal
Government's advertising ban are purportedly buttressing in this
case, is considering establishing a lottery. See 1993 N. C. S. Bill
No. 11, 140th Gen. Assembly. According to one estimate, by the end
of this decade all but two States (Utah and Nevada) will have
state-run lotteries.10
The fact that the vast majority of the States currently sponsor
a lottery, and that soon virtually all of them will do so, does
not, of course, preclude an outlier State from following a
different course and attempting to discourage its citizens from
partaking of such activities. But just as the fact that "the vast
majority of the 50 States ... prohibit[ed] casino gambling"
purported to inform the Court's conclusion in
Posadas de Puerto
Rico Associates v.
Tourism Co. of P. R., 478 U.
S., at 341, that Puerto Rico had a "substantial" interest in
discouraging such gambling, the national trend in the opposite
direction in this case surely undermines the United States'
contention that nonlottery States have a "substantial" interest in
discouraging their citizens from traveling across state lines and
participating in a neighboring State's lottery. The Federal
Government and the States simply do not have an overriding or
"substantial" interest in
7 Selinger, Special Report: Marketing State Lotteries, City and
State 14 (May 24, 1993).
8 Ibid.
9See,
e. g., 1993 Ala. H. Bill No. 75, 165th
Legislature-Regular Sess.; 1993 Miss. S. Concurrent Res. No. 566,
162d Legislature-Regular Sess.; 1993 N. M. S. Bill No. 141, 41st
Legislature-First Regular Sess.; 1993 N. C. S. Bill No. 11, 140th
Gen. Assembly; 1993 Okla. H. Bill No. 1348, 44th Legislature-First
Regular Sess.
10 Selinger,
supra.
442
seeking to discourage what virtually the entire country is
embracing, and certainly not an interest that can justify a
restriction on constitutionally protected speech as sweeping as the
one the Court today sustains.
I respectfully dissent.
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