Posadas De P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986)

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Author: Justice Brennan

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Posadas De P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986)

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.

The Puerto Rico Games of Chance Act of 1948, Act No. 221 of May 15, 1948, legalizes certain forms of casino gambling in Puerto Rico. Section 8 of the Act nevertheless prohibits gambling casinos from "advertis[ing] or otherwise offer[ing] their facilities to the public of Puerto Rico." § 8, codified, as amended, at P.R.Laws Ann., Tit. 15, § 77 (1972). Because neither the language of § 8 nor the applicable regulations define what constitutes "advertis[ing] or otherwise offer[ing gambling] facilities to the public of Puerto Rico," appellee Tourism Company was found to have applied the Act in an arbitrary and confusing manner. To ameliorate this problem, the Puerto Rico Superior Court, to avoid a declaration of the unconstitutionality of § 8, construed it to ban only advertisements or offerings directed to the residents of Puerto Rico, and listed examples of the kinds of advertisements that the court considered permissible under the Act. I doubt that this interpretation will assure that arbitrary and unreasonable applications of § 8 will no longer occur.{1} However, even assuming that appellee will now enforce § 8 in a nonarbitrary manner, I do not believe that Puerto Rico constitutionally may suppress truthful commercial speech in order to discourage its residents from engaging in lawful activity.

I

It is well settled that the First Amendment protects commercial speech from unwarranted governmental regulation. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-762 (1976).

Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.

Central Hudson Gas &Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 561-562 (1980). Our decisions have recognized, however,

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). We have therefore held that the Constitution "accords less protection to commercial speech than to other constitutionally safeguarded forms of expression." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65 (1983). Thus, while the First Amendment ordinarily prohibits regulation of speech based on the content of the communicated message, the government may regulate the content of commercial speech in order to prevent the dissemination of information that is false, deceptive, or misleading, see Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985); Friedman v. Rogers, 440 U.S. 1, 14-15 (1979); Ohralik, supra, at 462, or that proposes an illegal transaction, see Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973). We have, however, consistently invalidated restrictions designed to deprive consumers of accurate information about products and services legally offered for sale. See e.g., Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (lawyer’s services); Carey v. Population Services International, 431 U.S. 678, 700-702 (1977) (contraceptives); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977) (housing); Virginia Pharmacy Board, supra, (pharmaceuticals); Bigelow v. Virginia, 421 U.S. 809 (1975) (abortions).

I see no reason why commercial speech should be afforded less protection than other types of speech where, as here, the government seeks to suppress commercial speech in order to deprive consumers of accurate information concerning lawful activity. Commercial speech is considered to be different from other kinds of protected expression because advertisers are particularly well suited to evaluate "the accuracy of their messages and the lawfulness of the underlying activity," Central Hudson, 447 U.S. at 564 n. 6, and because

commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not "particularly susceptible to being crushed by overbroad regulation."

Ibid. (quoting Bates, supra, at 381); see also Friedman, supra, at 10; Virginia Pharmacy Board, supra, at 772, n. 24. These differences, we have held,

justify a more permissive approach to regulation of the manner of commercial speech for the purpose of protecting consumers from deception or coercion, and these differences explain why doctrines designed to prevent "chilling" of protected speech are inapplicable to commercial speech.

Central Hudson, supra, at 578 (BLACKMUN, J., concurring in judgment); see Linmark Associates, Inc., supra, at 98; Virginia Pharmacy Board, supra, at 772, n. 24. However, no differences between commercial and other kinds of speech justify protecting commercial speech less extensively where, as here, the government seeks to manipulate private behavior by depriving citizens of truthful information concerning lawful activities.

Even though "commercial" speech is involved, [this kind of restriction] strikes at the heart of the First Amendment. This is because it is a covert attempt by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice. . . . [T]he State’s policy choices are insulated from the visibility and scrutiny that direct regulation would entail and the conduct of citizens is molded by the information that government chooses to give them.

Central Hudson, supra, at 574-575 (BLACKMUN, J., concurring in judgment). See also Note, Constitutional Protection of Commercial Speech, 82 Colum.L.Rev. 720, 750 (1982) ("Regulation of commercial speech designed to influence behavior by depriving citizens of information . . . violates basic [First Amendment] principles of viewpoint- and public-agenda neutrality"). Accordingly, I believe that, where the government seeks to suppress the dissemination of nonmisleading commercial speech relating to legal activities, for fear that recipients will act on the information provided, such regulation should be subject to strict judicial scrutiny.

II

The Court, rather than applying strict scrutiny, evaluates Puerto Rico’s advertising ban under the relaxed standards normally used to test government regulation of commercial speech. Even under these standards, however, I do not believe that Puerto Rico constitutionally may suppress all casino advertising directed to its residents. The Court correctly recognizes that

[t]he particular kind of commercial speech at issue here, namely, advertising of casino gambling aimed at the residents of Puerto Rico, concerns a lawful activity and is not misleading or fraudulent.

Ante at 340-341. Under our commercial speech precedents, Puerto Rico constitutionally may restrict truthful speech concerning lawful activity only if its interest in doing so is substantial, if the restrictions directly advance the Commonwealth’s asserted interest, and if the restrictions are no more extensive than necessary to advance that interest. See Zauderer, supra, at 638; In re R.M.J., 455 U.S. 191, 203 (1982); Central Hudson, supra, at 564. While tipping its hat to these standards, the Court does little more than defer to what it perceives to be the determination by Puerto Rico’s Legislature that a ban on casino advertising aimed at residents is reasonable. The Court totally ignores the fact that commercial speech is entitled to substantial First Amendment protection, giving the government unprecedented authority to eviscerate constitutionally protected expression.

A

The Court asserts that the Commonwealth has a legitimate and substantial interest in discouraging its residents from engaging in casino gambling. According to the Court, the legislature believed that

"[e]xcessive casino gambling among local residents . . . would produce serious harmful effects on the health, safety and welfare of the Puerto Rican citizens, such as the disruption of moral and cultural patterns, the increase in local crime, the fostering of prostitution, the development of corruption, and the infiltration of organized crime."

Ante at 341 (quoting Brief for Appellees 37). Neither the statute on its face nor the legislative history indicates that the Puerto Rico Legislature thought that serious harm would result if residents were allowed to engage in casino gambling;{2} indeed, the available evidence suggests exactly the opposite. Puerto Rico has legalized gambling casinos, and permits its residents to patronize them. Thus, the Puerto Rico Legislature has determined that permitting residents to engage in casino gambling will not produce the "serious harmful effects" that have led a majority of States to ban such activity. Residents of Puerto Rico are also permitted to engage in a variety of other gambling activities -- including horse racing, "picas," cockfighting, and the Puerto Rico lottery -- all of which are allowed to advertise freely to residents.{3} Indeed, it is surely not far-fetched to suppose that the legislature chose to restrict casino advertising not because of the "evils" of casino gambling, but because it preferred that Puerto Ricans spend their gambling dollars on the Puerto Rico lottery. In any event, in light of the legislature’s determination that serious harm will not result if residents are permitted and encouraged to gamble, I do not see how Puerto Rico’s interest in discouraging its residents from engaging in casino gambling can be characterized as "substantial," even if the legislature had actually asserted such an interest, which, of course, it has not. Cf. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 715 (1984) (Oklahoma’s selective regulation of liquor advertising "suggests limits on the substantiality of the interests it asserts"); Metromedia, Inc. v. San Diego, 453 U.S. 490, 532 (1981) (BRENNAN, J., concurring in judgment) ("[I]f billboards alone are banned and no further steps are contemplated or likely, the commitment of the city to improving its physical environment is placed in doubt").

The Court nevertheless sustains Puerto Rico’s advertising ban because the legislature could have determined that casino gambling would seriously harm the health, safety, and welfare of the Puerto Rican citizens. Ante at 344.{4} This reasoning is contrary to this Court’s long-established First Amendment jurisprudence. When the government seeks to place restrictions upon commercial speech, a court may not, as the Court implies today, simply speculate about valid reasons that the government might have for enacting such restrictions. Rather, the government ultimately bears the burden of justifying the challenged regulation, and it is incumbent upon the government to prove that the interests it seeks to further are real and substantial. See Zauderer, 471 U.S. at 641; In re R.M.J., 455 U.S. at 205-206; Friedman, 440 U.S. at 15. In this case, appellee has not shown that "serious harmful effects" will result if Puerto Rico residents gamble in casinos, and the legislature’s decision to legalize such activity suggests that it believed the opposite to be true. In short, appellees have failed to show that a substantial government interest supports Puerto Rico’s ban on protected expression.

B

Even assuming that appellee could show that the challenged restrictions are supported by a substantial governmental interest, this would not end the inquiry into their constitutionality. See Linmark Associates, 431 U.S. at 94; Virginia Pharmacy Board, 425 U.S. at 766. Appellee must still demonstrate that the challenged advertising ban directly advances Puerto Rico’s interest in controlling the harmful effects allegedly associated with casino gambling. Central Hudson, 447 U.S. at 564. The Court proclaims that Puerto Rico’s legislature

obviously believed . . . that advertising of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised.

Ante at 341-342. However, even assuming that an advertising ban would effectively reduce residents’ patronage of gambling casinos,{5} it is not clear how it would directly advance Puerto Rico’s interest in controlling the "serious harmful effects" the Court associates with casino gambling. In particular, it is unclear whether banning casino advertising aimed at residents would affect local crime, prostitution, the development of corruption, or the infiltration of organized crime. Because Puerto Rico actively promotes its casinos to tourists, these problems are likely to persist whether or not residents are also encouraged to gamble. Absent some showing that a ban on advertising aimed only at residents will directly advance Puerto Rico’s interest in controlling the harmful effects allegedly associated with casino gambling, Puerto Rico may not constitutionally restrict protected expression in that way.

C

Finally, appellees have failed to show that Puerto Rico’s interest in controlling the harmful effects allegedly associated with casino gambling "cannot be protected adequately by more limited regulation of appellant’s commercial expression." Central Hudson, supra, at 570. Rather than suppressing constitutionally protected expression, Puerto Rico could seek directly to address the specific harms thought to be associated with casino gambling. Thus, Puerto Rico could continue carefully to monitor casino operations to guard against "the development of corruption, and the infiltration of organized crime." Ante at 341. It could vigorously enforce its criminal statutes to combat "the increase in local crime [and] the fostering of prostitution." Ibid. It could establish limits on the level of permissible betting, or promulgate additional speech designed to discourage casino gambling among residents, in order to avoid the "disruption of moral and cultural patterns," ibid., that might result if residents were to engage in excessive casino gambling. Such measures would directly address the problems appellee associates with casino gambling, while avoiding the First Amendment problems raised where the government seeks to ban constitutionally protected speech.

The Court fails even to acknowledge the wide range of effective alternatives available to Puerto Rico, and addresses only appellant’s claim that Puerto Rico’s legislature might choose to reduce the demand for casino gambling among residents by "promulgating additional speech designed to discourage it." Ante at 344. The Court rejects this alternative, asserting that

it is up to the legislature to decide whether or not such a "counterspeech" policy would be as effective in reducing the demand for casino gambling as a restriction on advertising.

Ibid. This reasoning ignores the commands of the First Amendment. Where the government seeks to restrict speech in order to advance an important interest, it is not, contrary to what the Court has stated, "up to the legislature" to decide whether or not the government’s interest might be protected adequately by less intrusive measures. Rather, it is incumbent upon the government to prove that more limited means are not sufficient to protect its interests, and for a court to decide whether or not the government has sustained this burden. See In re R.M.J., supra, at 206; Central Hudson, supra, at 571. In this case, nothing suggests that the Puerto Rico Legislature ever considered the efficacy of measures other than suppressing protected expression. More importantly, there has been no showing that alternative measures would inadequately safeguard the Commonwealth’s interest in controlling the harmful effects allegedly associated with casino gambling. Under these circumstances, Puerto Rico’s ban on advertising clearly violates the First Amendment.{6}

The Court believes that Puerto Rico constitutionally may prevent its residents from obtaining truthful commercial speech concerning otherwise lawful activity because of the effect it fears this information will have. However,

[i]t is precisely this kind of choice between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.

Virginia Pharmacy Board, 425 U.S. at 770. "[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments." First National Bank v. Bellotti, 435 U.S. 765, 791 (1978). The First Amendment presupposes that

people will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them.

Virginia Pharmacy Board, supra, at 770. "[I]f there be any danger that the people cannot evaluate . . . information, . . . it is a danger contemplated by the Framers of the First Amendment." Bellotti, supra, at 792; see also Central Hudson, 447 U.S. at 562 ("[T]he First Amendment presumes that some accurate information is better than no information at all"). Accordingly, I would hold that Puerto Rico may not suppress the dissemination of truthful information about entirely lawful activity merely to keep its residents ignorant. The Court, however, would allow Puerto Rico to do just that, thus dramatically shrinking the scope of First Amendment protection available to commercial speech, and giving government officials unprecedented authority to eviscerate constitutionally protected expression. l respectfully dissent.

1. Beyond the specific areas addressed by the Superior Court’s "guidelines," § 8 must still be applied on a case-by-case basis; a casino advertisement "passes legal scrutiny" if "the object of the advertisement is the tourist." App. to Juris. Statement 40b. Appellee continues to insist that a newspaper photograph of appellant’s slot machines constituted an impermissible "advertisement," even though it was taken at a press conference called to protest legislative action. See Brief for Appellees 48. Thus, even under the narrowing construction made by the Superior Court, appellee would interpret § 8 to prohibit casino owners from criticizing governmental policy concerning casino gambling if such speech is directed to the Puerto Rico residents who elect government officials, rather than to tourists.

2. The Act’s Statement of Motives says only that

[t]he purpose of this Act is to contribute to the development of tourism by means of the authorization of certain games of chance . . . and by the establishment of regulations for and the strict surveillance of said games by the government, in order to ensure for tourists the best possible safeguards, while at the same time opening for the Treasurer of Puerto Rico an additional source of income.

Games of Chance Act of 1948, Act No. 221 of May 15, 1948, § 1. There is no suggestion that discouraging residents from patronizing gambling casinos would further Puerto Rico’s interests in developing tourism, ensuring safeguards for tourists, or producing additional revenue.

3. The Court seeks to justify Puerto Rico’s selective prohibition of casino advertising by asserting that

the legislature felt that for Puerto Ricans the risks associated with casino gambling were significantly greater than those associated with the more traditional kinds of gambling in Puerto Rico.

Ante at 343. Nothing in the record suggests that the legislature believed this to be the case. Appellee has failed to show that casino gambling presents risks different from those associated with other gambling activities, such that Puerto Rico might, consistently with the First Amendment, choose to suppress only casino advertising directed to its residents. Cf. Metromedia, Inc. v. San Diego, 453 U.S. 490, 534, n. 12 (1981) (BRENNAN, J., concurring in judgment) (The First Amendment "demands more than a rational basis for preferring one kind of commercial speech over another"); Schad v. Mount Ephraim, 452 U.S. 61, 73 (1981) ("The [government] has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems . . . more significant that those associated with various permitted uses"). For this reason, I believe that Puerto Rico’s selective advertising ban also violates appellant’s rights under the Equal Protection Clause. In rejecting appellant’s equal protection claim, the Court erroneously uses a "rational basis" analysis, thereby ignoring the important First Amendment interests implicated by this case. Cf. Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).

4. The Court reasons that, because Puerto Rico could legitimately decide to prohibit casino gambling entirely, it may also take the "less intrusive step" of legalizing casino gambling but restricting speech. Ante at 346. According to the Court, it would

surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban [casino gambling], but deny to the legislature the authority to forbid the stimulation of demand for [casino gambling]

by banning advertising. Ibid. I do not agree that a ban on casino advertising is "less intrusive" than an outright prohibition of such activity. A majority of States have chosen not to legalize casino gambling, and we have never suggested that this might be unconstitutional. However, having decided to legalize casino gambling, Puerto Rico’s decision to ban truthful speech concerning entirely lawful activity raises serious First Amendment problems. Thus, the "constitutional doctrine" which bans Puerto Rico from banning advertisements concerning lawful casino gambling is not so strange a restraint -- it is called the First Amendment.

5. Unlike the Court, I do not read the fact that appellant has chosen to litigate the case here to necessarily indicate that appellant itself believes that Puerto Rico residents would respond to casino advertising. In light of appellees’ arbitrary and capricious application of § 8, appellant could justifiably have believed that, notwithstanding the Superior Court’s "narrowing" construction, its First Amendment rights could be safeguarded effectively only if the Act was invalidated on its face.

6. The Court seeks to buttress its holding by noting that some States have regulated other "harmful" products, such as cigarettes, alcoholic beverages, and legalized prostitution, by restricting advertising. While I believe that Puerto Rico may not prohibit all casino advertising directed to its residents, I reserve judgment as to the constitutionality of the variety of advertising restrictions adopted by other jurisdictions.

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Chicago: Brennan, "Brennan, J., Dissenting," Posadas De P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986) in 478 U.S. 328 478 U.S. 349–478 U.S. 359. Original Sources, accessed October 1, 2022, http://www.originalsources.com/Document.aspx?DocID=L9G2881H2979UJL.

MLA: Brennan. "Brennan, J., Dissenting." Posadas De P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986), in 478 U.S. 328, pp. 478 U.S. 349–478 U.S. 359. Original Sources. 1 Oct. 2022. http://www.originalsources.com/Document.aspx?DocID=L9G2881H2979UJL.

Harvard: Brennan, 'Brennan, J., Dissenting' in Posadas De P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986). cited in 1986, 478 U.S. 328, pp.478 U.S. 349–478 U.S. 359. Original Sources, retrieved 1 October 2022, from http://www.originalsources.com/Document.aspx?DocID=L9G2881H2979UJL.