Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the casino that the regulations-which, among other things, had barred the use of the word "casino" on matchbooks and even interoffice or external correspondence-were "capricious, arbitrary, erroneous and unreasonable, and ha[d] produced absurd results which are contrary to law," it refused to in- validate the statutory advertising ban. Instead, it issued narrowing constructions of the statute and regulations to prohibit "advertisements . . . in the local publicity media addressed to inviting the residents of Puerto Rico to visit the casinos.' The Puerto Rico Supreme Court upheld the lower court and the casino appealed to the U.S. Supreme Court.
In Posadas de Puerto Rico Associates v. Tourism Co., the Supreme Court affirmed the Puerto Rico courts by a 5-4 decision written by then-Justice Rehnquist. First applying the mid-level scrutiny for regulations of commercial speech that it had announced in its Central Hudson decision six years earlier, the majority determined that the regulations, as narrowed by the Puerto Rico courts, passed muster because they directly advanced a substantial governmental interest in reducing demand for casino gambling by the residents of Puerto Rico and were no more extensive than necessary to serve that interest. Second, and seemingly in the alternative, the majority explained that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling."
The four liberal Justices dissented in two separate opinions. Justice Brennan, joined by Justices Marshall and Blackmun, spent the bulk of his dissent arguing that the majority did not faithfully apply Central Hudson. Observing first that the legislature permit- ted Puerto Rican residents "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," Brennan concluded that the government had failed to show that a substantial interest supported the advertising ban. But even assuming otherwise, he continued, the government also failed to show either that the advertising ban directly advanced its "interest in controlling the harmful effects allegedly associated with casino gambling,"' or that its interests could not be advanced in a manner more solicitous of speech interests-as by "establish[ing] limits on the level of permissible betting, or promulgat[ing] additional speech designed to discourage casino gambling among residents."
Mitchell N. Berman,
Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at "The Greater Includes the Lesser",
55 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss3/1