UNITED STATES v. N.J. STATE LOTTERY COMM'N

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 73-1471.

Attorney(S)

Deputy Solicitor General Wallace argued the cause for petitioners. On the brief were Solicitor General Bork, Assistant Attorney General Kauper, Louis F. Claiborne, Danny J. Boggs, and Joseph A. Marino. Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for respondent. With him on the brief was William F. Hyland, Attorney General. Briefs of amici curiae urging affirmance were filed by Robert K. Killian, Attorney General, and Barney Lapp and Daniel R. Schaefer, Assistant Attorneys General, for the State of Connecticut; by Warren B. Rudman, Attorney General, and David H. Souter, Deputy Attorney General, for the State of New Hampshire; by Louis Schwartz and Robert A. Woods for the Maryland Public Broadcasting Commission; by William J. Brown, Attorney General, Page 372 and Stephen T. Parisi for the State of Ohio; by Verne Hodge, Attorney General, and Henry L. Feuerzeig, First Assistant Attorney General, for the Government of the Virgin Islands; by John B. Summers for the National Association of Broadcasters; and by Thomas R. Asher, Melvin L. Wulf, and Joel M. Gora for the American Civil Liberties Union.

Judges

William Orville Douglas

Acts

See more information ...

Smart Summary

Factual and Procedural Background

A licensed New Jersey radio station, Jersey Cape, sought declaratory relief from the Federal Communications Commission (FCC) challenging the applicability of 18 U.S.C. § 1304 to the broadcast of winning numbers in the lawful New Jersey state-run lottery. The FCC denied relief initially and upon rehearing, allowing the New Jersey Lottery Commission to intervene. The Lottery Commission petitioned the Court of Appeals for the Third Circuit, which reversed the FCC's denial. The States of New Hampshire and Pennsylvania intervened in the Court of Appeals. The Supreme Court granted certiorari to resolve a conflict with a prior decision from the Second Circuit regarding similar issues.

Legal Issues Presented

Whether 18 U.S.C. § 1304 applies to the broadcast of winning numbers from a lawful state-run lottery by a licensed radio station within the state.
Whether the enactment of 18 U.S.C. § 1307, which exempts certain state lottery broadcasts from § 1304, renders the case moot.
Whether § 1307’s limitation—applying only to broadcasts from stations in states conducting a lottery or adjacent states also conducting a lottery—raises First Amendment concerns, particularly regarding broadcasters in states adjacent to lottery states that do not conduct lotteries (e.g., Vermont broadcasting New Hampshire lottery results).

Arguments of the Parties

Petitioners (United States)

Argued that the case should be dismissed as moot following Congress’s enactment of 18 U.S.C. § 1307, which exempts broadcasts of state lottery information by stations licensed in the state or adjacent states conducting such lotteries.
Asserted that the relief sought by the New Jersey broadcaster is now provided by statute since New Jersey conducts a state-authorized lottery.

Intervenor (State of New Hampshire)

Contended that the case is not moot because § 1307 does not provide full relief.
Noted that Vermont, an adjacent state to New Hampshire, does not conduct a lottery, so broadcasters there remain prohibited from airing New Hampshire lottery information under § 1304 as modified by § 1307.
Asserted that this limitation may violate First Amendment rights, although this issue was not briefed or argued before the Court.

Dissenting Opinion (Justice Douglas)

Disagreed with the majority’s suggestion that the case is moot.
Emphasized that the First Amendment prohibits prior restraint on the press, including broadcasting news such as lottery results.
Highlighted constitutional concerns about Congress effectively adjudicating guilt through legislation, referencing bills of attainder prohibitions.
Argued the Court should decide the merits rather than remand for mootness consideration and affirm the Court of Appeals’ judgment.
Supported New Hampshire’s argument that § 1307 does not resolve all claims, particularly restricting Vermont broadcasters from airing New Hampshire lottery results, thus continuing to inhibit lottery participation and raising constitutional issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
New York State Broadcasters Assn. v. United States, 414 F.2d 990 (2d Cir. 1969)	Conflicting interpretation of applicability of § 1304 to state lottery broadcasts	Certiorari was granted to resolve conflict with this decision
United States v. Brown, 381 U.S. 437 (1965)	Bill of attainder prohibition under Article I, § 9, cl. 3	Referenced in dissent to caution against Congressional usurpation of judicial functions
United States v. Lovett, 328 U.S. 303 (1946)	Bill of attainder prohibition under Article I, § 9, cl. 3	Referenced in dissent for same reason as Brown

Court's Reasoning and Analysis

The Court analyzed the applicability of 18 U.S.C. § 1304, which prohibits broadcasting information about lotteries, to the broadcast of winning numbers from a lawful state-run lottery. The New Jersey radio station challenged the FCC’s denial of declaratory relief on this issue. After the Court of Appeals reversed the FCC, Congress enacted 18 U.S.C. § 1307, exempting broadcasts of state lottery information by stations licensed in states conducting such lotteries or adjacent states also conducting lotteries.

Given this statutory amendment, the Court determined that the case might be moot because the relief sought by the New Jersey broadcaster is now statutorily provided. However, the Court recognized the argument by New Hampshire that § 1307 does not cover all scenarios, such as broadcasts from states adjacent to a lottery state but not conducting a lottery themselves (e.g., Vermont broadcasting New Hampshire lottery results), potentially raising constitutional issues not briefed or argued before the Court.

Consequently, the Court vacated the Court of Appeals’ judgment and remanded the case for reconsideration of mootness in light of the new statute.

Holding and Implications

Holding: The Supreme Court vacated the judgment of the Court of Appeals and remanded the case for further consideration of whether the case is moot in light of the enactment of 18 U.S.C. § 1307.

Implications: The decision directly affects the parties by requiring the lower court to reassess mootness post-enactment of § 1307. The Court did not establish new precedent on the constitutional questions raised, particularly the First Amendment concerns related to broadcasts from states not conducting lotteries but adjacent to those that do. The case remains open for further judicial consideration on these unresolved issues.

Show full summary ...

UNITED STATES ET AL. v. NEW JERSEY STATE LOTTERY COMMISSION

A licensed New Jersey radio station sought, but was denied, declaratory relief from the Federal Communications Commission (FCC) against the application of 18 U.S.C. § 1304 to the broadcast of winning numbers in a lawful state-run lottery such as New Jersey has. Subsequent to the Court of Appeals' reversal of the FCC's denial of relief, Congress enacted 18 U.S.C. § 1307 (a)(2) making § 1304 inapplicable to information concerning a state-authorized lottery broadcast in that State or an adjacent State having such a lottery. Held: In view of the enactment of § 1307 the case is remanded to the Court of Appeals so that it may consider whether the case is moot as the Government contends, or is not moot because, as intervenor State of New Hampshire contends, § 1307 in violation of First Amendment rights would still not allow broadcasters in Vermont, which has no lottery, to broadcast winning numbers in the New Hampshire lottery.

491 F.2d 219, vacated and remanded.

PER CURIAM.

This case involves a question regarding the applicability of 18 U.S.C. § 1304, which provides:

"Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year, or both."

Jersey Cape, a licensed radio station in New Jersey, sued for declaratory relief before the Federal Communications Commission arguing that § 1304 should not apply to the broadcast of the winning number in a lawful state-run lottery such as the one conducted by the State of New Jersey. See N.J. Stat. Ann. § 5:9-1 et seq. (1973). The Commission denied relief. 30 F.C.C.2d 794 (1971). Upon a petition for rehearing, the New Jersey Lottery Commission was allowed to intervene and the FCC reaffirmed its denial. 36 F.C.C.2d 93 (1972). The Lottery Commission petitioned for review in the Court of Appeals for the Third Circuit, 491 F.2d 219 (1974), and the States of New Hampshire and Pennsylvania were granted permission to intervene as petitioners, id., at 221 n. 2. Sitting en banc, the Third Circuit unanimously reversed the FCC. We granted certiorari to resolve an apparent conflict between that decision and the decision by the Court of Appeals for the Second Circuit in New York State Broadcasters Assn. v. United States, 414 F.2d 990 (1969).

Subsequent to the briefing and oral argument of the case in this Court, Congress passed and the President signed Pub.L. 93-583, 88 Stat. 1916, codified at 18 U.S.C. § 1307 (1970 ed., Supp. IV), which, in relevant part, provides:

"(a) The provisions of section . . . 1304 shall not apply to an advertisement, list of prizes, or information concerning a lottery conducted by a State acting under the authority of State law —

. . . . .

"(2) broadcast by a radio or television station licensed to a location in that State or an adjacent State which conducts such a lottery."

The United States now urges us to dismiss this case as moot. It points out that the only relief requested was by a broadcaster located in New Jersey, a State that conducts an authorized lottery, and therefore the type of broadcast at issue is now allowed by statute. Intervenor, the State of New Hampshire disputes the suggestion of mootness. New Hampshire argues that the amendment to § 1304 does not grant it full relief. It is noted that Vermont, an adjacent State, does not conduct a state-authorized lottery. Thus, Vermont broadcasters will not be allowed, under § 1304, as modified by § 1307, to broadcast to New Hampshire listeners the winning numbers in the New Hampshire state lottery. New Hampshire apparently believes that this limitation constitutes a denial of First Amendment rights. This specific issue, however, was not briefed or argued in this Court.

In view of the enactment of § 1307, we deem it appropriate to remand to the Court of Appeals so that it may consider whether the case is now moot. Accordingly, the judgment below is vacated and the case is remanded.

It is so ordered.

THE CHIEF JUSTICE took no part in the consideration or decision of this case.

MR. JUSTICE DOUGLAS, dissenting.

With all respect, I do not believe that this case has become moot — certainly not for the reasons intimated by the Court. The First Amendment provides that Congress shall make no law abridging the freedom of the press. It is to me shocking that a radio station or a newspaper can be regulated by a court or by a commission, to the extent of being prevented from publishing any item of "news" of the day. So to hold would be a prior restraint of a simple and unadulterated form, barred by constitutional principles. Can anyone doubt that the winner of a lottery is prime news by our press standards?

In our history, Congress has shown at times an appetite for performing the judicial function of finding people guilty. That is the reason why the Constitution contains Art. I, § 9, cl. 3, which outlaws bills of attainder. See United States v. Brown, 381 U.S. 437 (1965); United States v. Lovett, 328 U.S. 303 (1946). For Congress to hold that the radio station in the present case was or was not guilty of violating 18 U.S.C. § 1304 would be a flagrant usurpation of Art. III functions.

Our decision should rest not on what Congress has done but on the merits of the controversy, which do not seem to me to be substantial. I would not presume that Congress undertook to pass on the merits of the claim at issue before us. I would not remand for consideration of the issue of mootness. To me it is manifest that the case is not moot and that the judgment below should be affirmed.

As the State of New Hampshire points out, the new § 1307 even on its face does not resolve the claims of all parties to this action. New Hampshire, which was granted leave to intervene in the Court of Appeals, conducts a lottery; neighboring Vermont does not. Title 18 U.S.C. § 1307 (a)(2) (1970 ed., Supp. IV), upon which the Court relies, applies only to broadcasts by a station in the State which conducts the lottery, or in an adjacent State which also conducts a lottery; presumably, then, § 1304 remains applicable to a Vermont radio station which desires to broadcast information concerning the New Hampshire lottery. The restraint imposed by § 1304 will thus continue to inhibit the New Hampshire lottery with respect to certain groups of prospective participants, including New Hampshire residents who listen to Vermont radio stations and Vermont residents who might wish to cross the state line and participate.