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

• Court: Department of Justice Office of Legal Counsel
• Decided: September 26, 1977
• Status: Published

Opinion

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