Enforceability of 18 U.S.C. § 1302 ( 2000 )

Enforceability of 18 U.S.C. § 1302Application o f 18 U .S.C. § 1 3 0 2 to prohibit the m ailing o f truthful advertising concerning certain
law ful gam bling operations would violate the First A m endm ent. A ccordingly, the D epartm ent of
Justice w ill refrain from enforcing the statute with respect to such mailings.
Letter Opinion for the Speaker of the House of Representatives
September 25, 2000
This is to inform you of the Department of Justice’s determination that, in light
of governing Supreme Court precedent, the Department cannot constitutionally
continue to apply 18 U.S.C. § 1302 to prohibit the mailing of truthful information
or advertisements concerning certain lawful gambling operations.
I.
The central opinion that informs the Department’s decision is Greater New
Orleans Broadcasting A ss’n v. United States, 522 U.S. 173 (1999). In that case,
an association o f Louisiana broadcasters and its members challenged the constitu­
tionality of the federal statute prohibiting the broadcasting of information con­
cerning lotteries and other gambling operations. The statute in question, 18 U.S.C.
§ 1304 (1994), provides in relevant part:
Whoever broadcasts by means of any radio or television station
for which a license is required by any law of the United States
. . . 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 . . . shall be fined under this
title or imprisoned not more than one year, or both.
The broadcasters sought permission to broadcast advertisements for lawful casino
gambling in Louisiana and Mississippi. The Supreme Court held that the First
Amendment prohibits application of § 1304 “ to advertisements of private casino
gambling that are broadcast by radio or television stations located in Louisiana,
where such gambling is legal.” 527 U.S. at 176.
The Court reviewed the constitutionality of § 1304 under the “ commercial
speech” test of Central Hudson Gas & Elec. Corp. v. Public Service Com m ’n,
447 U.S. 557 (1980). See Greater New Orleans, 527 U.S. at 183. Under that
test, when a government regulation restricts truthful speech proposing lawful
commercial activity, the court must “ ask whether the asserted governmental
interest is substantial.” Central Hudson, 447 U.S. at 566. If the interest is substan­
tial, the court determines whether the regulation “ directly advances the govem-
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Opinions o f the Office o f Legal Counsel in Volume 24
mental interest asserted” and whether it “ is not more extensive than is necessary
to serve that interest.” Id. As the Court observed in Greater New Orleans , “ the
Government bears the burden of identifying a substantial interest and justifying
the challenged restriction.” 527 U.S. at 183.
In the G reater New Orleans case, the government identified two basic govern­
mental interests served by § 1304: minimizing the social costs associated with
gambling or casino gambling by reducing demand, and “ assisting States that
‘restrict gambling’ or ‘prohibit casino gambling’ within their borders.” 527 U.S.
at 185-87. The Supreme Court determined that, as applied to truthful advertising
for lawful casino gambling by broadcasters located in states that permit such gam­
bling, § 1304 does not directly advance either interest and is an impermissibly
restrictive means of serving those interests. Id. at 188-96.
As to the government’s interest in minimizing the social costs of casino gam­
bling by reducing consumer demand, the Supreme Court concluded that “ [t]he
operation of § 1304 and its attendant regulatory regime is so pierced by exemp­
tions and inconsistencies that the Government cannot hope to exonerate it.” Id.
at 190. The Court pointed to the various exceptions that Congress has engrafted
onto § 1304 over the years, particularly the exception for broadcast advertisements
for Indian gambling (see 25 U.S.C. §2720 (1994)). The Court concluded that by
permitting advertisements for Indian casino gambling and certain other kinds of
gambling to be broadcast on a nationwide basis, Congress had effectively made
it impossible for § 1304 to accomplish its original goal of minimizing the social
costs of gambling by reducing consumer demand. In addition, the Court noted
that Congress could have employed various “ practical and nonspeech-related
forms of [casino gambling] regulation,” such as restrictions on casino admission
and credit, that “ could more directly and effectively alleviate some of the social
costs of casino gambling.” 527 U.S. at 192.
The Court also determined that the other asserted governmental interest, that
of assisting States that restrict casino gambling, “ adds little to [the government’s]
case.” Id. at 194. First, the statutory exceptions that prevented § 1304 from
directly and materially advancing the federal government’s interest in minimizing
the social costs of casino gambling were equally inimical to the efforts of non­
casino states: “ We cannot see how this broadcast restraint, ambivalent as it is,
might directly and adequately further any state interest in dampening consumer
demand for casino gambling if it cannot achieve the same goal with respect to
the similar fed era l interest.” Id. (emphasis added). Second, the Court concluded
that § 1304 “ sacrifices an intolerable amount of truthful speech about lawful con­
duct when compared to all of the policies at stake and the social ills that one
could reasonably hope such a ban to eliminate.” Id. The Court reasoned that
prohibiting casino gambling advertisements in all States in order to protect the
interests of non-casino States is “ neither a rough approximation of efficacy, nor
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Enforceability o f 18 U.S. C. § 1302
a reasonable accommodation of competing State and private interests.” Id. at 194-
95.
The Court concluded by stating:
Had the Federal Government adopted a more coherent policy, or
accommodated the rights of speakers in States that have legalized
the underlying conduct, see [ United States v.] Edge [Broadcasting
Co.], 509 U.S. [418,] 428 [(1993)], this might be a different case.
But under current federal law, as applied to petitioners and the mes­
sages that they wish to convey, the broadcast prohibition in 18
U.S.C. § 1304 and 47 CFR §73.1211 violates the First Amendment.
Id. at 195.
II.
After the G reater New Orleans decision was issued, the Department was
required to consider whether the application of § 1304 to the broadcasting of truth­
ful advertisements for lawful casino gambling violates the First Amendment,
regardless of whether the statute is applied to broadcasts originating in States that
permit casino gambling (as was the case in G reater New Orleans) or in States
that do not. This question arose in the case of Players International, Inc. v. United
States, 988 F. Supp. 497 (D.N.J. 1997), appeal pending, No. 98-5127 (3d Cir.
1999). In a supplemental brief submitted to the Third Circuit on behalf of the
United States, the Justice Department observed that “ while the Court’s holding
in Greater N ew Orleans is confined to broadcasts originating in casino gambling
States, the Court’s reasoning indicates that section 1304, as currently written,
cannot constitutionally be applied to broadcasts originating in non-casino States
either.” See Supplemental Brief for the Appellants at 6 (emphasis in original),
Players Int’l, Inc. v. United States (No. 98-5127) ( “ U.S. B rie f’). This view
reflected the conclusion that the same deficiencies and inconsistencies that the
Court in Greater New Orleans held to undermine the government interests there
were also present when the statute was applied to broadcasts originating in non­
casino States.
As noted above, the Court in Greater New Orleans found that § 1304 did not
directly advance the government’s interest in minimizing the social costs of casino
gambling because the statutory exceptions to § 1304, particularly the exception
for Indian gambling, preclude the statute from meaningfully reducing public
demand for casino gambling. See 527 U.S. at 193-95. The exception for Indian
gambling is nationwide in scope: advertisements for Indian gambling may be
broadcast in every State, including States that prohibit private casino gambling.
See 25 U.S.C. § 2720. The same is true of the other statutory exceptions to § 1304
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Opinions o f the Office o f Legal Counsel in Volume 24
except for the one covering state lotteries. See 18 U.S.C. § 1307(a) (1994). As
a result, the Department determined that there is no reason to believe that § 1304
is any more effective in minimizing the social costs of casino gambling for resi­
dents of non-casino States than it is for residents of casino States. See U.S. Brief
at 7.
The Court in G reater New Orleans also held that § 1304 was an impermissibly
restrictive means of dealing with the social costs associated with casino gambling
because those costs “ could [be] more directly and effectively alleviate[d]” by
“ nonspeech-related forms of regulation.” 527 U.S. at 192. The Department con­
cluded that this determination, too, is equally applicable with respect to broadcasts
originating in non-casino States. If measures such as “ a prohibition or supervision
o f gambling on credit” are more effective than § 1304 with respect to gamblers
who live in States that permit casino gambling, as the Court found, they would
appear to be equally effective as to gamblers who visit from non-casino States.
Id.
Finally, the Department decided that the Court’s conclusion in Greater New
Orleans that the federal goal of assisting non-casino States “ adds little to [the]
case,” id. at 194, also holds true with respect to the application of §1304 to
broadcasts originating in non-casino States themselves. The Court stressed the fact
that the “ ambivalent” federal advertising restriction, with its exceptions for Indian
gambling and other gambling activities, cannot “ directly and adequately further
any state interest in dampening consumer demand for casino gambling.” Id. That
reasoning would rebut the argument that the application of § 1304 in non-casino
States directly advances the anti-gambling policies of those States.
Given these considerations, the Department’s brief in Players asserted that
§ 1304 may not constitutionally be applied to broadcasters who broadcast truthful
advertisements for lawful casino gambling, regardless of whether the broadcasters
are located in a State that permits casino gambling or one that does not. In
conjunction with the filing of that brief, the Solicitor General notified both Houses
of Congress that the Department is no longer defending the constitutionality of
§ 1304 as applied to such broadcasts. See Letters for Hon. J. Dennis Hastert,
Speaker of the House, U.S. House o f Representatives, and for Hon. Patricia Mack
Bryan, Senate Legal Counsel, U.S. Senate, from Seth P. Waxman, Solicitor Gen­
eral, U.S. Department of Justice (Aug. 6, 1999).
in .
In light of the G reater New Orleans decision, the U.S. Postal Service was faced
with the question whether that opinion might also render unconstitutional certain
applications o f 18 U.S.C. § 1302, which prohibits the mailing of essentially the
same kind of gambling-related matter covered by the analogous broadcast restric­
tions of 18 U.S.C. § 1304. Section 1302 provides in relevant part:
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Enforceability o f 18 U.S.C. § 1302Whoever knowingly deposits in the mail, or sends or delivers by
mail:
Any letter, package, postal card, or circular concerning any lot­
tery, gift enterprise, or similar scheme offering prizes dependent
in whole or in part upon lot or chance;
Any newspaper, circular, pamphlet, or publication of any kind
containing any advertisement of any lottery, gift enterprise, or
scheme of any kind offering prizes dependent in whole or in part
upon lot or chance, . . . .
Shall be fined under this title or imprisoned not more than two
years, or both; and for any subsequent offense shall be imprisoned
not more than five years.
The Postal Service therefore wrote the Department of Justice seeking its guid­
ance as to whether. § 1302 remained constitutionally enforceable.1 The Service’s
letter stated: “ Without some interpretation on this point the Postal Service will
be in a position of receiving requests for mailing services and for interpretations
of both our mailing requirements statutes and the criminal statute, which should
be guided by the Department of Justice.” The Service further expressed the view
that, in light of the Greater New Orleans decision, § 1302 “ is now indefensible
in federal court.” Letter for Randolph Moss, Acting Assistant Attorney General,
Office of Legal Counsel, from Elizabeth P. Martin, Chief Counsel, Consumer
Protection Law, U.S. Postal Service (Oct. 19, 1999).
After thorough consideration of the matter, I have concluded that the application
of 18 U.S.C. § 1302 to the mailing of truthful advertising concerning lawful gam­
bling operations (except as to state-operated lotteries in some circumstances, see
p. 8, infra) would be unconstitutional. I have further concluded that, because of
such unconstitutionality, the Department should no longer enforce the statute
against such mailings.
As reflected in the text of the respective statutes, § 1302 imposes restrictions
on mailed communications regarding gambling or lottery matter that are nearly
identical to those imposed by § 1304 with respect to broadcast communications
on the same subject matter. Further, § 1302 is subject to the same weakening
exceptions that the Supreme Court considered fatal to § 1304’s constitutionality
in Greater New Orleans. I therefore find no reasonable basis for distinguishing
1 Letter for Josh Hochberg, Chief-Fraud Section, Criminal Division, U S. Department of Justice, from Elizabeth
P. Martin, C hief Counsel, Consumer Protection, U.S. Postal Service, Re Interpretation o f Greater New Orleans
Broadcasting Assoc., Inc. (Aug 10, 1999)
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Opinions o f the Office o f Legal Counsel in Volume 24
the provisions of § 1302 from those of § 1304 with respect to the constitutional
question presented here. The former’s restrictions against the mailing of truthful
information concerning lawful gambling activities conflict with First Amendment
standards for the same reasons that apply to the latter’s restrictions against broad­
casting the same kind of information.
A.
Just as the First Amendment applies to the governmental restrictions on broad­
casting challenged in G reater New Orleans and Players, it applies, as well, to
the governmental restrictions on the dissemination of information through the
mails that are at issue here. See, e.g., Bolger v. Youngs Drug Prods. Corp., 463
U.S. 60 (1983) (federal statute prohibiting unsolicited mailing of contraceptive
advertisements held to be an unconstitutional restriction on commercial speech);
Blount v. Rizzi, 400 U.S. 410, 416 (1971) (invalidating administrative restrictions
on mailing of obscene matter and quoting Justice Holmes dissent in Milwaukee
Soc. D em ocratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921): “ The United
States may give up the post office when it sees fit, but while it carries it on
the use of the mails is almost as much a part of free speech as the right to use
our tongues . . . .” ); Lamont v. Postmaster General, 381 U.S. 301 (1965) (statute
requiring Post Office to obtain authorization from addressee before delivering cer­
tain designated types of mail violates the addressee’s First Amendment rights).
As the Court observed in United States P ostal Service v. Greenburgh Civic
Associations, 453 U.S. 114 (1981), “ [hjowever broad the postal power conferred
by Article I may be, it may not of course be exercised by Congress in a manner
that abridges the freedom of speech or of the press protected by the First Amend­
ment to the Constitution.”
The Supreme Court has indicated that federal government restrictions on postal
communications involving commercial speech are to be evaluated using the same
test applicable to broadcast communications involving commercial speech. The
leading case is Bolger, in which the Court held that the provisions of 39 U.S.C.
§ 3001(e)(2), prohibiting the mailing of unsolicited advertisements for contracep­
tives, were unconstitutional as applied to the informational pamphlets at issue.
In so holding, the Court applied precisely the same four-part test from Central
Hudson for restrictions on commercial speech that it applied to the broadcast
communications at issue in Greater New Orleans. See 463 U.S. at 68-69. I there­
fore conclude that the Central Hudson test is applicable to 18 U.S.C. § 1302, and
with the same results reached in G reater New Orleans, insofar as that statute
prohibits the mailing of truthful advertising concerning lawful gambling oper­
ations.
The Court’s reasoning in Greater New Orleans with respect to § 1304 is directly
applicable to § 1302. The mailing prohibition of § 1302, like the broadcasting
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Enforceability o f 18 U.S.C. § 1302prohibition of § 1304, does not directly advance the federal government’s interest
in minimizing the social costs of casino gambling because it is subject to the
very same nationwide statutory exceptions that the Supreme Court held fatally
undermined the constitutionality of § 1304’s analogous prohibitions against the
broadcast of gambling advertisements. See 18 U.S.C. § 1307; 25 U.S.C. §2720( “ sections 1301, 1302, 1303, and 1304 of title 18 shall not apply to any gaming
conducted by an Indian tribe pursuant to this chapter” ). Thus, advertisements for
State-conducted lotteries, Indian gaming operations, and the additional exemptions
authorized by the Charity Games Advertising Clarification Act of 1988, 18 U.S.C.
§ 1307(a)(2), are exempted from the mailing provisions of § 1302 as well as from
the broadcast provisions of § 1304. Accordingly, for the reasons set forth by the
Supreme Court in Greater New Orleans , § 1302, like § 1304, cannot constitu­
tionally be applied to prohibit the transmission of truthful information or
advertisements concerning lawful gambling activities.2
This conclusion is not intended to address the question whether Congress could
amend applicable statutory law in this area in a manner that would conform to
the governing constitutional standards. As the Supreme Court explained in G reater
New Orleans with reference to the restrictions on broadcast advertising contained
in 18 U.S.C. § 1304, “ [h]ad the Federal Government adopted a more coherent
policy, or accommodated the rights of speakers in States that have legalized the
underlying conduct, this might be a different case.” 527 U.S. at 195 (citation
omitted). The Department is unable to conclude, however, that existing federal
law respecting the mailing of information or advertisements concerning legal gam­
bling (apart from State-operated lotteries) is any more satisfactory in this respect
than the broadcast restrictions invalidated in G reater New Orleans.
B.
In assessing the impact of G reater New Orleans on § 1302’s prohibitions against
mailing of gaming information, I consider it important to emphasize that many
significant applications of the statute should remain unaffected by that decision.
Because the Department is not persuaded that the Greater New Orleans holding
renders § 1302 unconstitutional in all its applications, my decision to restrict future
enforcement of the statute is limited in scope. See United States v. Grace, 461
2 Prior to the Supreme C ourt's opinion in Greater N ew Orleans, two district courts had rejected First Amendment
challenges to § 1302 brought by a magazine that earned advertisements for lotteries and casinos, Aim es Publications,
Inc. v. U S Postal Service, No. 86-1434, 1988 WL 19618 (D.D.C. 1988), and by an association of newspapers
whose members wished to carry lottery advertising, Minnesota Newspaper Ass'n, Inc v Postmaster General, 677
F Supp. 1400 (D Minn 1987) (§ 1302 held constitutional as applied to lottery advertisements, but unconstitutional
as applied to mailing of newspapers containing prize lists), vacated as moot, 490 U S 225 (1989). Because both
o f these decisions are grounded upon the courts’ finding that the statute directly advances the government interests
in minimizing the social costs associated with gambling, or supporting the policies o f States that restrict or prohibit
gambling, see Aimes, 1988 WL 19618, at *3 and Minnesota Newspaper A ss'n, 677 F Supp. at 1404—05, they cannot
be reconciled with the subsequent holding in Greater N ew Orleans that the efficacy o f the attempt to advance those
interests is undercut by the statutory exemptions that permit the nationwide promotion o f various kinds of gambling.
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Opinions o f the Office o f Legal Counsel in Volume 24
U.S. 171, 180-82 (1983). The Department continues to regard § 1302 as enforce­
able in a number of significant applications.
First, my non-enforcement decision is limited to mailed information and
advertisements concerning lawful gambling activities. Neither the Department nor
the Postal Service asserts that § 1302 is inapplicable to, or unenforceable against,
the mailing of advertisements for illegal gambling activities, and nothing in
G reater N ew Orleans establishes that § 1302 would be unconstitutional as applied
to such advertising. See 527 U.S. at 184; see also 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 497 n.7 (1996).
Second, my decision applies only with respect to truthful, nonmisleading gam­
bling advertisements. Neither the Department nor the Postal Service suggests that
the First Amendment entitles anyone to mail false or misleading advertising. The
Supreme Court repeatedly has held that false and misleading advertising is not
protected by the First Amendment, and G reater New Orleans does not suggest
otherwise. See 527 U.S. at 184—85; Central Hudson, 447 U.S. at 566.
Third, the mailings covered by m y decision do not include advertisements con­
cerning state-operated lotteries. The regulatory regime for state lottery advertising
is different from that for advertising for other forms of lawful gambling: read
together, 18 U.S.C. §§ 1302 and 1307(a)(1)(A) prohibit the mailing of
advertisements for state lotteries contained in publications published in non-lottery
States, while expressly exempting the mailing of such lottery advertisements con­
tained in publications that are published in a lottery State. In United States v.
Edge Broadcasting Co., 509 U.S. 418, 428 (1993), the Supreme Court expressly
upheld the constitutionality of the corresponding provisions of 18 U.S.C. §§ 1304and 1307(a) that apply to broadcasters in non-lottery States and stressed that such
application properly advanced the ‘ ‘congressional policy of balancing the interests
of lottery and nonlottery States.”
Finally, I note that this non-enforcement decision does not extend to the applica­
tion of § 1302 insofar as that section applies to the use of the mails for the actual
conduct or operation of gambling activities through the mails, as distinguished
from informational or advertisement mailings. Rather, this decision applies only
to the enforcement of § 1302 with respect to truthful informational mailings or
advertisements concerning lawful gambling.
CONCLUSION
For the foregoing reasons, and subject to the above-stated qualifications, I have
determined that the application o f 18 U.S.C. § 1302 to prohibit the mailing of
truthful, nonmisleading information or advertisements concerning lawful gambling
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Enforceability o f 18 U.S.C. § 1302operations would be unconstitutional. Accordingly, the Department will refrain
from enforcing the statute with respect to such mailings.
Sincerely,
JANET RENO
Attorney General
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OPINIONS
O F THE
OFFICE OF LEGAL COUNSEL
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