Brown v. State ex rel. Department of Public Safety & Corrections, Louisiana Gaming Control Board

680 So. 2d 1179, 1996 WL 590992
CourtSupreme Court of Louisiana
DecidedOctober 15, 1996
DocketNo. 96-CA-2204
StatusPublished
Cited by10 cases

This text of 680 So. 2d 1179 (Brown v. State ex rel. Department of Public Safety & Corrections, Louisiana Gaming Control Board) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State ex rel. Department of Public Safety & Corrections, Louisiana Gaming Control Board, 680 So. 2d 1179, 1996 WL 590992 (La. 1996).

Opinions

hWATSON, Justice.1

_JjThis is a direct appeal from the trial court’s declaration that R.S. 27:13(C)(6) is unconstitutional insofar as it restricts contributions to committees supporting or opposing issues.

FACTS

Plaintiff, Charles A. Brown d/b/a Triam-bient Lounge & Restaurant is a video gaming licensee of the Louisiana Gaming Control Board who wishes to contribute to an advertising fund promoting video poker.

The pertinent part of the statute, R.S. 27:13(C)(6) provides:

No member or board employee nor a member of the immediate family of a board member or board employee nor any casino operator or any other licensee or permittee shall make a contribution or loan to, or expenditure on behalf of, a candidate or committee.

Like all legislative enactments, R.S. 27:13(C)(6) enjoys a presumption of constitutionality. Polk v. Edwards, 626 So.2d 1128 (La.1993).

In the definitions section of the statute, the words “candidate” and “committee” are defined according to R.S. 18:1483.

|3R.S. 18:1483(3)(a) defines a candidate. The word includes any public servant required to file campaign finance reports and anyone whose expenditures or contributions exceed $500.00. The candidate prohibition is not at issue here.

“Committee,” R.S. 18:1483(14), means two or more persons organized to support or oppose any candidate, proposition, recall or political party which handles funds in excess of $500.00 within a calendar year. Candidate committees are not an issue here.

After the enactment of R.S. 27:13(0(6), the Louisiana Gaming Control Board adopted Emergency Rule 107, which provides: “no casino operator, licensee or permittee of the Board shall make a contribution, loan, or expenditure to or on behalf of a candidate or committee.”

The trial court decided that R.S. 27:13(C)(6) insofar as it restricts contributions to committees supporting or opposing issues, i.e., independent expenditures not linked to a candidate, is unconstitutional. The trial court issued a preliminary injunction. A suspensive appeal was granted.

LAW

Strict scrutiny applies to any regulation of First Amendment rights. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981).

|/The Supreme Court’s most recent expression on the First Amendment versus gambling regulation was in Greater New Orleans [1181]*1181Broadcasting Assn. v. U.S., — U.S. -, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996) which vacated a U.S. Fifth Circuit opinion at 69 F.3d 1296 (5th Cir.1995). See Dana M. Shelton, Note, The Fifth Circuit Upholds Federal Ban on Casino Gambling Advertising Against First Amendment Challenge: Greater New Orleans Broadcasting Association v. United States, 70 Tul. L. Rev. 1725 (1996). The Fifth Circuit held that the substantial governmental interest served by a federal statute prohibiting casino gambling radio and television advertisements was sufficient to override the First Amendment. Judge Politz stated in dissent:

... protection of commercial speech is not vitiated when the speech concerns lawful but potentially harmful activity, such as alcohol consumption or gambling. 69 F.3d at 1303.

The United States Supreme Court remanded the Greater New Orleans Broadcasting Assn, case for further consideration in light of 44 Liquormart, Inc. v. Rhode Island, 517 U.S. -, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996).

Liquormart held that Rhode Island’s ban on advertising retail liquor prices except at the place of sale violated the First Amendment. Speech prohibitions of this type rarely survive constitutional review. Liquormart states that Posadas de Puerto Rico Associates v. Tourism Co. of P.R., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) “clearly erred” in allowing a legislature to suppress casino advertising. Liquormart, — U.S. at -, 116 S.Ct. at 1511-12, 134 L.Ed.2d at 732.

Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), held that the Federal Election Campaign Act’s candidate political contribution ceilings did not violate the First Amendment or invidiously discriminate against non-incumbent candidates. They were supported by the substantial government interest in limiting corruption.

First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), held that a Massachusetts statute, which prohibited certain corporations from making contributions to influence votes, was an unconstitutional abridgement of free speech in violation of the First and Fourteenth Amendments. The question in that case was whether the corporate identity deprived the speech of its otherwise clear entitlement to protection. Justices White, Brennan, and Marshall dissented, stating that the statute properly prohibited corporate management from using corporate monies to promote management’s personal views. Justice Rehnquist also dissented on the ground that business corporations, unlike natural persons, have a limited right of political expression.

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) dealt with a Berkeley, California ordinance limiting ^contributions to committees formed to support or oppose ballot measures to $250.00. The California Supreme Court held that the ordinance furthered compelling governmental interests because it insured that special interest groups could not corrupt the initiative process by spending large amounts to support or oppose a ballot measure. The United States Supreme Court reversed, holding that the ordinance’s restraints on association and expression contravened the First Amendment. There is no significant state interest in curtailing debate and discussion of ballot measures.

Citizens Against Rent Control states:
Contributions by individuals to support concerted action by a committee advocating a position on a ballot measure is beyond question a very significant form of political expression. As we have noted, regulation of First Amendment rights is always subject to exacting judicial scrutiny. 454 U.S. at 298, 102 S.Ct. at 438, 70 L.Ed.2d at 500.
Whatever may be the state interest or degree of that interest in regulating and limiting contributions to or expenditures of a candidate or a candidate’s committees there is no significant state or public interest in curtailing debate and discussion of a ballot measure. Placing limits on contributions which in turn limit expenditures plainly impairs freedom of expression. 454 [1182]*1182U.S. at 299,102 S.Ct. at 439, 70 L.Ed.2d at 501.

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Brown v. STATE THROUGH DEPT. OF PUB. SAF.
680 So. 2d 1179 (Supreme Court of Louisiana, 1996)

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Bluebook (online)
680 So. 2d 1179, 1996 WL 590992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-ex-rel-department-of-public-safety-corrections-louisiana-la-1996.