POSADAS DE PUERTO RICO ASSOCIATES v. TOURISM COMPANY OF PUERTO RICO 478 U.S. 328 (1986)

inPosadas the Supreme Court upheld, 5–4, a Puerto Rico statute that authorized casino gambling but forbade advertising of casino gambling when the advertising was aimed at Puerto Rican residents. The majority, in an opinion by Justice william h. rehnquist, followed the doctrinal formula in central hudson gas and electric corp. v. public service commission (1980) for testing the constitutionality of regulations of commercial speech. The advertising concerned a lawful activity and was not misleading or fraudulent. Thus, the Court proceeded to the interest-balancing part of the formula. The governmental interest was the reduction of demand for casino gambling; Puerto Rico's concerns for its residents' health, safety, and welfare was obvious, considering that a majority of the states prohibit such gambling altogether. The restrictions on advertising, said the Court, directly advanced that interest. Furthermore, the Commonwealth of Puerto Rico was not required to resort to advertising of its own as a least restrictive means for discouraging casino gambling. In support of the latter point Justice Rehnquist cited lower court decisions approving restrictions on advertising of cigarettes and alcohol. Puerto Rico could have banned casino gambling altogether; this greater power included the lesser power to regulate advertising.

justice william j. brennan, writing for three Justices, dissented, arguing the the Commonwealth had not met its burden of substantial justification for regulating commercial speech. In particular, the Commonwealth had not shown that less restrictive means would suffice. Justice john paul stevens focused his dissent on the law's discrimination based on the advertising's intended audience.

There is little doubt that Congress or a state legislature could constitutionally ban the sale or use of cigarettes. Commentators have suggested that Posadas implies that, even if such a prohibition law were not adopted, a ban on cigarette advertising would be constitutional.

Kenneth L. Karst
(1992)