Constitutionality of 18 U.S.C. § 1302 as Applied to Newspaper Advertisements by the Maryland Lottery Commission ( 1977 )


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  •                                                                    Septem ber 26, 1977
    77-53       MEMORANDUM OPINION FOR THE
    UNITED STATES ATTORNEY FOR THE
    DISTRICT OF COLUMBIA
    Constitutionality of 
    18 U.S.C. § 1302
    —Lotteries
    This is in response to your request for our opinion on the constitu­
    tionality o f 
    18 U.S.C. § 1302
     as applied to the publication of advertise­
    ments in The Washington S tar by the Maryland Lottery Commission for
    the M aryland State Lottery. The advertisements consist of a list of
    winning lottery numbers and the State lottery’s logo and slogan. They
    do not include entry blanks, mailing addresses, or other invitations to
    use the mails to purchase lottery tickets to be sent from Maryland. We
    conclude that in these circumstances the First Amendment prohibits the
    application of 
    18 U.S.C. § 1302
     to the Star.1
    This situation is almost identical to that involved in Bigelow v. Virgin­
    ia, 
    421 U.S. 809
     (1975). T h e Supreme Court held that a commercial
    advertisement in a Virginia newspaper for a lawful abortion referral
    service in New York was protected by the First Amendment although
    abortions were illegal in Virginia at that time. T he Court stated that the
    citizens o f a jurisdiction w here a service is illegal have the right to
    travel to a jurisdiction w here it is lawful in order to purchase it, and
    they have the concomitant First Amendment right to receive truthful
    commercial information that it is available despite the public policy of
    the home jurisdiction. Bigelow, at 821-25. Thus the Star would probably
    be protected by the First Amendment in printing advertisements intend-
    1 
    18 U.S.C. § 1302
     provides in pertinent part:
    W hoever knowingly deposits in th e mail, or sends or delivers by mail:
    •               *              *              *              »
    A ny newspaper, circular, pamphlet, or publication of any kind containing any advertise­
    ment o f any lottery, gift enterprise, or scheme of any kind offering prizes dependent in
    whole or in part upon lot or chance, or containing any list of the prizes drawn or
    awarded by means o f any such lottery, gift enterprise, o r scheme, whether said list
    contains any part o f all of such prices; . . .
    *           *            *           *            *
    Shall be fined not more than $1,000 o r imprisoned not more than tw o years, o r both; . . .
    214
    ed to induce residents of the District of Columbia or Virginia to come
    to Maryland to buy lottery tickets.
    We also note that one circuit court of appeals has held that the First
    Amendment protects the right of the news media in one State to
    publish the results of another State’s legal lottery as an item of news
    interest. New Jersey State Lottery Commission v. United States. 
    491 F. 2d 219
     (3rd Cir. 1974), vacated as moot, 
    420 U.S. 371
     (1975). The advertise­
    ments in question may be considered to have news interest even though
    paid for by the advertiser. Cf., New York Times Co. v. Sullivan, 
    376 U.S. 254
    , 265-66 (1964). But an advertisement that invited readers to
    use the mails to purchase lottery tickets within a jurisdiction w here this
    is illegal, is arguably an unprotected invitation to violate the law. See,
    Bigelow, 
    supra, at 826-29
     (1975).
    L eon U lm an
    Deputy Assistant Attorney General
    Office o f Legal Counsel
    215