Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico

PETITIONER: Posadas de Puerto Rico Associates, dba Condado Holiday Inn
RESPONDENT: Tourism Company of Puerto Rico
LOCATION: Pennsylvania Department of Public Welfare

DOCKET NO.: 84-1903
DECIDED BY: Burger Court (1981-1986)
LOWER COURT:

CITATION: 478 US 328 (1986)
ARGUED: Apr 28, 1986
DECIDED: Jul 01, 1986

ADVOCATES:
Lino J. Saldana - Argued the cause for the appellee
Maria Milagros Soto - Argued the cause for the appellant

Facts of the case

A Puerto Rican law restricted advertising by the island's casino gambling establishments. Even though gambling was a legal activity in Puerto Rico, the law only allowed advertising that was targeted at tourists.

Question

Did the law violate the First Amendment?

Media for Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico

Audio Transcription for Oral Argument - April 28, 1986 in Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico

Warren E. Burger:

The Court will hear arguments first this morning in Puerto Rico Associates against Tourism Company of Puerto Rico.

Ms. Soto, you may proceed whenever you are ready.

Maria Milagros Soto:

Mr. Chief Justice, may it please the Court:

This case presents a substantial question whether a statute of Puerto Rico violates the First, Fifth and Fourteenth Amendments of the United States Constitution because it completely bans a franchise holder, a casino franchise holder, from advertising or otherwise offering its casino facilities to the public of Puerto Rico.

Without abandoning our Fifth and Fourteenth Amendment attacks on Section 8 of the Games of Chance Act of Puerto Rico, we have chosen to limit our argument to the First Amendment protection extended to truthful information about legal activities, and rely on our briefs for the remaining valid grounds, although in our minds, after living through the over-extensive obligation that Puerto Rico has given to the statute, we cannot characterize this ban as strictly commercial speech.

The over-breadth and vagueness of the ban abridges, has abridged in the past, as the record shows, fully protected speech and public debate speech.

Neither can we accept as valid the classification, subclassification, of a casino speech ban versus the public forum availability open to other gaining activities in Puerto Rico, nor the resident versus nonresident classification that the judgment below added to the original controversy.

However, argument on the First Amendment content based classification of the Act should persuade the Court to hold that casino advertising is protected by the United States Constitution, and that all truthful information about this legal activity cannot be blocked by Puerto Rico in an effort to keep its people uninformed as an extensive means of controlling through speech the activity of gambling.

The best example of the dangers inherent in over-broad prohibitions of speech, containing no guidelines of enforcement for the government, are given by the facts of this case.

Section 8 of the statute reads:

"No gambling room shall be permitted to advertise or otherwise offer its facilities in any manner whatsoever to the public in Puerto Rico. "

In 30 years of enforcement, the government never defined what constituted advertising, nor who was the public.

Neither did it clarify whether in Puerto Rico, including the tourist ones, he or she landed in Puerto Rico.

William H. Rehnquist:

Ms. Soto, didn't the Superior Court Judge substantially restrict the literal language of the statute when he interpreted it?

Maria Milagros Soto:

Yes, it did, Your Honor, but it did not cure the unconstitutionality of the statute as we would argue.

Sandra Day O'Connor:

Well, what's left of the statute now?

Is it just the prohibition against advertising in the media within Puerto Rico itself?

Maria Milagros Soto:

The statute as construed still prohibits completely all information if it's addressed to the residents of Puerto Rico.

And therefore, it is still a complete ban of truthful information about a legal business to the residents of Puerto Rico, and thus unconstitutional, in our view, as construed.

Sandra Day O'Connor:

Well, is it media advertising that it now covers, as the court below has construed it?

Maria Milagros Soto:

Well, Your Honor--

Sandra Day O'Connor:

What if a matchbook with the name of the casino came into the hands of a resident of Puerto Rico.

Is that somehow prohibited now?

Is that your understanding?

Maria Milagros Soto:

--According to what the Judge decided, if it was aimed at the tourists it would not be prohibited.

The problem is that the determination as to what the intent is would have to be based on content.

Each time that an advertisement or information about a casino is... comes across, and for instance, we brought to this Court's attention a case whereby even under the Court's construction now, as recently as after this Court had granted jurisdiction to hear this case, a supplement was published with information about the casino activities upon the opening of the second hotel, the El San Juan Hotel, that merely covered the facilities that were open to the public.

One page out of 52 that cover all the other facilities of the hotel was conceded by the government as casino advertising, and something that they had not done before.

They did not fine us this time, but they said that the case was being turned over for investigation for criminal prosecution.

Now, this statute is a criminal statute and this was a supplement by... an article by the newspaper was not an ad placed, as the Judge directed, and still it's being considered as advertising to Puerto Rico.