In Posadas, a key commercial speech case, the Court confronted the question of whether Puerto Rico could limit the scope of advertising by casinos so as to shield residents from the advertising. The operator of a casino sought a declaratory judgment that the regulations governing casino advertising violated the First Amendment. Although prior to Posadas the Court had tended to construe the regulatory power relatively favorably to commercial speakers and thus to protect most truthful speech against governmental interference, in Posadas the Court found the state’s purpose rational and its limitations were largely upheld. Justice Rehnquist also suggested a controversial justification. He noted that because Puerto Rico could undoubtedly have banned casino gambling altogether, it seemed axiomatic that it could regulate advertising of gambling under the theory that the greater power to ban must include the lesser power to regulate.
Some observers initially thought the decision heralded the emergence of a ‘‘vice exception’’—that is, a willingness to accept more paternalistic speech restrictions when the subjects of regulation were items that had always been subject to stricter regulatory control such as alcohol and gambling. However, this speculation was ended in the Court’s later repudiation, in the 44 Liquormart v. Rhode Island (517 U.S. 484, 1996) case, of some of the reasoning in Posadas. In 44 Liquormart the majority characterized the First Amendment analysis in Posadas as ‘‘erroneously performed.’’ The 44 Liquormart opinion is generally regarded as a shift from greater deference to regulatory efforts to more protection for commercial speech.
TAMARA R. PIETY
References and Further Reading
Cases and Statutes Cited