William H. Rehnquist: We'll hear argument first this morning in No. 87-1956, Anthony M. Frank, Postmaster General v. The Minnesota Newspaper Association. Mr. Larkin?
Paul J. Larkin, Jr.: Thank you, Mr. Chief Justice, and may it please the Court. At issue in this case is the facial constitutionality under the First Amendment of a provision of the Anti-Lottery Act of 1890, an act of Congress that has been on the books for 99 years, and it has already been upheld by this Court over a First Amendment challenge. The Anti-Lottery Act of 1890 contains two clauses that are relevant here: an advertisement clause and a prize list clause. The advertisement clause prohibits sending advertisements through the mail. The prize list clause prohibits sending through the mail lists of prizes drawn or awarded by the lotteries. Now, this case, however, is now smaller in scope than it was when the Court noted probable jurisdiction in October and when we filed our brief in November. The district court upheld the constitutionality of the advertisement clause, but that ruling is no longer before the Court. What is before the Court is the district court's ruling on the constitutionality of the prize list clause. The district court held that clause unconstitutional on its face on the ground that it was designed to and would prevent a distribution through the mails of news stories that contained lists of prizes awarded by a lottery. What remains in this case in our view still presents a live controversy between the parties. That controversy can be decided on the record as it now stands, and that controversy can be resolved in our favor essentially by relying on this Court's precedents. The judgment below should be reversed for two reasons which I will summarize. First, the district court misread the scope of the prize list clause. This Court in the Horner case held that a prize list used in the commercial promotion of a lottery fit within the term "prize list" in the statute. In our view that is also as far as the statute reaches. In other words, the prize list clause does not apply to news stories, editorials or similar types of commentary. It applies only to what today would be called commercial speech. Second, when the prize list clause is construed in that manner, it is facially constitutional under this Court's decisions in Ex parte Jackson, In re Rapler and Posadas.
Byron R. White: Well, if you exclude news stories and editorials, what kind of a... what have you got left?
Paul J. Larkin, Jr.: What you have left, Your Honor, is the type of prize list that this Court addressed in the Horner case, and that shows up in some of the examples we've reprinted in the appendix to our brief. In the appendix to our opening brief, we've reprinted several examples of what were prize lists that were distributed during the period before this Act became law. If you look to page 11a to 12a, you'll see an advertisement that was distributed in behalf of the Louisiana Lottery, which was the most famous or infamous lottery in the 19th century. If you look to the top of page 12a, you will see a section entitled "List of Prizes". At page 14a in the appendix is another prize list, this one distributed on behalf of the Kentucky lottery. Now, those examples we think are important because that is what this Court construed the Act to cover in the Horner case.
Byron R. White: This was... these were just separate lists mailed... sent through the mails to addressees.
Paul J. Larkin, Jr.: Correct. They could be put... put out by lotteries by purchasing advertising space or space for the promotion of a prize list in a newspaper. And then the newspaper was sent out across the country.
Byron R. White: Well, but... but I thought the ads were already out of the case.
Paul J. Larkin, Jr.: The... the... the constitutionality of the advertisement clause is out of the case. You're correct. But what is in--
Byron R. White: But if you buy space in the newspaper to publish your prize list, isn't that an ad?
Paul J. Larkin, Jr.: --Not necessarily, no, because Congress adopted two different clauses in the statute because I think it saw that there were two different types of promotional materials being used. The types of promotional materials you see here that would constitute a prize list is the same type of promotional material the Court addressed in the Horner case. We have reprinted in our brief at page 30, footnote 27, what this Court addressed in the Horner case. The prize list that is reprinted at that part of our brief is the same as the ones here. What was happening in the 19th century was that you had two different types basically of promotional materials being used. You had an advertisement that didn't include the lists of what could be awarded. That, for example, is at page 13a of our appendix. And then you had other types of promotional materials that basically just consisted of a list of what the lottery would award. Congress drafted the statute to include both types of materials.
John Paul Stevens: But, Mr. Larkin, I'm still a little puzzled. Those lists were not sent out in newspapers, were they?
Paul J. Larkin, Jr.: They could be, yes.
John Paul Stevens: Well, yes, but... but now they have to pay to do it.
Paul J. Larkin, Jr.: Yes. And if they pay to do it--
John Paul Stevens: Then it's an ad.
Paul J. Larkin, Jr.: --No, it would not necessarily be an add.
John Paul Stevens: Well, have you got an example anywhere in the world of such a list being published by a newspaper without... when it was paid for and it was not an ad?
Paul J. Larkin, Jr.: Well, the one we've reprinted at pages 11a to 12a, the one from the Louisiana Lottery, was called an ad by the Postal Service at the time, but it contained a list of prizes. You could--
John Paul Stevens: But it wasn't in a newspaper.
Paul J. Larkin, Jr.: --Yes, it was.
John Paul Stevens: Oh, I'm sorry. I misunderstood.
Paul J. Larkin, Jr.: See, both of these types of promotional materials... the one we have, for example, at page 13a, which is just basically a little flyer about the Louisiana Lottery would be seen as an advertisement in the period, like letting people know the lottery existed. And then you had other types of promotional materials that told them the prizes you could actually win if you entered. And Congress drafted the statute to include both.
William H. Rehnquist: But just how were the prize lists... they were... were they a flyer in the newspaper or reprinted on some page of the newspaper?
Paul J. Larkin, Jr.: They... they could occur in both ways. For example, at the time some lotteries in the 19th century actually tried to take advantage of the loophole in the 1876 Act by publishing their own lottery newspapers. For example, the postal... the Postmaster General pointed that out to Congress when they were considering this statute. So, in that case what you could have is the, say, Kentucky Lottery newspaper that was being printed, and you could have reprinted as the same way you have advertisements at grocery stores nowadays an advertisement about the lottery or list of the prizes that the lottery was going to award. You also could have the situation in which even if it wasn't a newspaper that was sponsored by the lottery itself, the... the lottery could purchase space in the newspaper to reprint the advertisement or the prize list. Let me explain some of the background to this, and it may help answer your question. In the 19th century, gambling, particularly lotteries, were treated with the same contempt that narcotics trafficking is today. That's clear not only from the materials that were before Congress, the statements by Presidents of the United States, but from the decisions of this Court.
Harry A. Blackmun: And yet, the... your illustration of the Louisiana State Lottery under the personal supervision and management of General G. I. Beauregard and General Jubal A. Early of Virginia, rather prominent figures in the 19th century.
Paul J. Larkin, Jr.: Absolutely. And, in fact, it was that reason that they were used by the Louisiana Lottery because they were... they were asked by the Louisiana Lottery to... to lend their name to this enterprise in order to add an air of respectability to it.
Harry A. Blackmun: And they lent their names.
Paul J. Larkin, Jr.: Correct. But, nonetheless, it was the Louisiana Lottery that ultimately was the target of this statute. By 1890, after a nationwide effort extending over several decades, most states... in fact, every state except Louisiana... had prohibited this type of activity. Louisiana allowed the Louisiana Lottery to engage in business, however, and it engaged in business on a nationwide scale and made an enormous amount of money as a result. It engaged in business on a nationwide scale by putting advertisements and other types of promotional materials in newspapers, and the reason it put those materials in newspapers is that the existing 1876 law that this Court upheld in the Jackson case did not apply to newspapers. The result was there was no existing way at that time for any of the other states in the Nation or Congress... excuse me... or the executive to do anything about the existence of the Louisiana Lottery. However, Congress decided it was time to shut it down. It decided that the only way effectively to do so was to deny the Louisiana Lottery access to its primary source of income which was money from out-of-state bettors since the Louisiana Lottery received more than 90 percent of its income from out-of-state bettors. The result of that was the Anti-Lottery Act of 1890. Congress passed that law in order to deny the Louisiana Lottery the opportunity to use newspapers for... for promoting their own financial success. It was that type of prize list or that type of advertisement that Congress was concerned about. Congress was not intending to prevent a newspaper from writing a news story about a lottery, about a lottery winner or about a lottery prize list.
Antonin Scalia: How do we know that? I mean, you know, it... very often Congress is concerned about one particular aspect of a problem, and it drafts a statute that covers that, but to be prophylactic covers a few things beyond that as well. I have no confidence at all that if you asked one of those original legislators, well, what if... what if a newspaper just wrote a news story, not an advertisement, just a news story, said, look it, these are the great money prizes that you can get in the Louisiana Lottery, I think it's quite plausible that that Senator would have said, yes, I think... don't like that any better.
Paul J. Larkin, Jr.: I have several--
Antonin Scalia: I mean, it seems to me that you are... you are dealing in an anachronism here. You're... you're casting back upon the 1890 Congress our modern notion of commercial speech. They didn't know about the distinction between commercial speech and other speech. We've invented that in recent years. And why should I ever think that they had it in mind in 1890?
Paul J. Larkin, Jr.: --I don't suggest that the Congress that passed this statute was thinking in terms of the... you know, the four-part Central Hudson test or any of the other cases that this Court has decided. But what I do say is this. Congress passed this statute to prevent lotteries from being commercially promoted. That purpose dovetails nicely we think with the commercial speech doctrine the Court has today, and we think that is what they were concerned about. You didn't have news stories about lotteries then because--
Antonin Scalia: Concerned about their being promoted commercially or otherwise. Why... why should I think they were just concerned about their being commercially promoted? To be sure, that was the main way they were promoted, but I have no basis for thinking that they wouldn't have been concerned about their being promoted in any fashion, commercially or otherwise.
Paul J. Larkin, Jr.: --Well, it's possible that if you had a different set of facts before Congress, they would have been concerned about that. But you didn't have news stories about lotteries because there was only one state, Louisiana, where they were lawful. And newspapers themselves supported this Act. Congress certainly believed that the majority of newspapers supported the legislation that it was putting forward, and I doubt the newspapers themselves would have supported this Act if they thought it was going to censure their ability to report about stories. Congress dealt with a particular problem, and it's the goal that Congress had in mind, the purpose of that statute, that should influence the construction here, and that is so even apart from the concerns expressed in cases like Catholic Bishop about construing statutes in order for them to be constitutional. We don't think Congress, which debated the constitutionality of this type of statute under the law that the Court had set forth in the Jackson case, intended this type of statute here to reach more broadly. Congress certainly hasn't shown any indication of intending in more recent times that the statute be read that broadly. The statute was revisited in 1974. The statute was revisited last year, and there's no reason to believe that Congress is not aware of what the historic construction is. In fact, Justice Scalla, there is no hint in this Court's opinion in the Rapler case, which was decided two years after the statute was passed, or in the Horner case, which was decided three years after the statute was passed, that this Act applied to news stories. And the people on this Court at that time were certainly aware of what the statute was designed to deal with. As I said, lotteries in the 19th century were as well-known and as despised as narcotics trafficking is today. The fact that this Court twice at that early stage didn't hesitate to even ask the question whether it applied to news stories I think is significant evidence that the statute doesn't reach that--
Antonin Scalia: Mr. Larkin, suppose I disagree with you. Suppose I think it means what it says and... and why... why couldn't I say that it's valid as applied to all... all commercial speech and not valid as applied to other speech? Why couldn't I handle the problem that way?
Paul J. Larkin, Jr.: --Well, if the statute is limited so that it applies only to commercial speech--
Antonin Scalia: No, I'm saying it's written to apply to everything, but it's... it's unconstitutional insofar as it extends beyond commercial speech. Why can't I say that?
Paul J. Larkin, Jr.: --Well, the statute still cannot be held facially unconstitutional, which is the ruling below, the one we are challenging, unless it is substantially overbroad, and we don't think it meets that test.
Antonin Scalia: Or why couldn't we adopt a new rule that in addition to being substantially overbroad... if it's overbroad in a fashion that can be limited very clearly, as most... most overbroad statutes can, where the only overbreadth consists of extending beyond commercial speech. It's a very clear line that you can make by judicial decision. Why couldn't I hold that a facial challenge can be rejected if the only overbreadth consists of going beyond commercial?
Paul J. Larkin, Jr.: We think you can, and we ask in this case for the district court's judgment which dealt only with the facial constitutionality of the statute to be reversed. If there are problems of the type that are concerning you, those problems can be worked out when the statute is applied in particular cases. That's what an as-applied type of challenge is for. But the district court held the statute facially invalid. We have argued that the statute should be construed to be limited to lotteries... excuse me... to prize lists used commercially to promote lotteries.
William H. Rehnquist: Tell... tell us again what the prize list clause covers that the advertising clause doesn't cover.
Paul J. Larkin, Jr.: The prize list clause covers circumstances in which you offer a prize in... for entry in the lottery, and the advertising clause covers other types of commercial promotion.
William H. Rehnquist: Well, now... now, wait a minute. Why does... why is the first example you mention that you say is covered by the prize list clause but not by the advertising clause... why isn't that covered by the advertising clause?
Paul J. Larkin, Jr.: It... there is some overlap between the two.
William H. Rehnquist: Well, exactly. What I'm trying to find out is what the prize list clause reaches that the advertising clause doesn't reach.
Paul J. Larkin, Jr.: The prize list clause would reach the case where you just basically have the list of prizes that the lottery is being... that the lottery is offering, perhaps with the title of the lottery, like the--
Byron R. White: Where? Where do you have it? How did it come into existence... this thing you're talking about?
Paul J. Larkin, Jr.: --Well, prize lists were... were used in circulars and other types of promotional materials.
Byron R. White: So, it would be mailings of prize lists that don't appear in the newspapers, for example, but there could be prize lists, I take it, that would be in the newspaper that you think the prize list clause would cover.
Paul J. Larkin, Jr.: Yes, I agree with Your Honor. The prize list clause could apply to newspapers and to other types of circulars.
William H. Rehnquist: But why wouldn't the advertising clause cover a prize list that appears in a newspaper and is paid for by some sponsor?
Paul J. Larkin, Jr.: Because we don't think Congress intended the prize... excuse me... the advertisement clause just to be limited... to reach in that manner.
William H. Rehnquist: Why not?
Paul J. Larkin, Jr.: In adopting a... well, by adopting a separate prize list clause, it seems that Congress thought it was dealing with two somewhat overlapping but, nonetheless, somewhat distinct types of promotional materials.
Byron R. White: Well, I would think... that's pretty fine. That's a pretty fine... I can understand that the prize list clause would surely cover mailings of prize lists and circulars to a bunch of addressees. There's no doubt... not much question about that, but I suppose the prize list clause, since it has been declared invalid on its face, couldn't even reach those circulars.
Paul J. Larkin, Jr.: That's right. The district court's judgment wouldn't allow the prize list clause to be applied in any manner to circulars, to newspaper stories, to even illegal uses of a lottery, such as a numbers racket.
Byron R. White: Now, if the... if there's a news story on the front page of the paper saying here is... here are the prizes that this new lottery will offer. It tells about the lottery starting up and who is sponsoring it. It's a news story. Then they have a... they have the very list that you find in the back of the paper that has been paid for in this news story. You say that... that is not covered by the prize list.
Paul J. Larkin, Jr.: No, a bona fide news story is not.
Byron R. White: Well--
Paul J. Larkin, Jr.: We don't think that the statute should be read to prevent the press from reporting about factual events and--
Byron R. White: --Well, not... not events. This is... they're reporting what you can win in the lottery.
Paul J. Larkin, Jr.: --That's right.
Byron R. White: Here's the list.
Paul J. Larkin, Jr.: It's an event to occur in the future and we don't think that the prize list clause properly construed should apply to simple, straightforward news stories in the manner--
Byron R. White: Or a news story that says... a news story that sums up and makes a great list of the prizes that have been won in the last year in the lottery.
Paul J. Larkin, Jr.: --Correct. If the lottery purchases the space in the newspaper to list all the prizes they have awarded in the past 10 years, to list all the prizes that they are going to award--
Byron R. White: That's covered.
Paul J. Larkin, Jr.: --That would be covered. If the newspaper sells the advertising space, that would be covered. But if the newspaper on its own prints a story either because it thinks its newsworthy or because it wants to just let the public play in the lottery by telling them about it, that wouldn't be covered.
Anthony M. Kennedy: But the example you just gave is not an ad.
Paul J. Larkin, Jr.: Correct. If it's just a list of prizes and, say, the name of the lottery, I don't think Congress thought that that was an advertisement.
Anthony M. Kennedy: And if it says this is an advertisement paid for by the XYZ Lottery Company, it's still not an ad. Why do... why do you care whether it is or not?
Paul J. Larkin, Jr.: Well, we're trying to be faithful to this fact that there are two separate clauses in the statute, and--
Byron R. White: Well, you've already got some... some coverage for the prize... for the prize clause: circulars.
Paul J. Larkin, Jr.: --That's right, but we think if you use the same material that goes in the circular in a newspaper, it would be covered there too.
Antonin Scalia: Mr. Larkin, I'm not sure you have circulars. I... I don't... I don't agree with your... your answer to Justice White on that. The first clause of 1302 covers any letter, package, postal card or circular concerning any lottery. That first clause would cover a list of prizes put into an envelope with a stamp on it and sent. That would be a circular concerning any lottery whether it's an advertisement or a list of prizes or anything else. The clause we're talking about here only, I believe, deals with material that is not inserted into an envelope, but that goes as a general publication to the general public, newspaper, circular, pamphlet or publication of any kind. I think they mean to distinguish between a publication and the kind of circulars that are... that are mailed to... to individuals.
Paul J. Larkin, Jr.: Well--
Antonin Scalia: I don't see the meaning of the first clause if... if you're reading this one the way you do to cover something put into an envelope to a private individual.
Paul J. Larkin, Jr.: --Well, let... let me explain then if... the difference here between the two. The circular part of the statute to which you were referring was part of the original 1876 law. The part of the statute that includes the prize list phrase was the part that was added by the 1890 law that was designed to deal with newspapers.
Speaker: xxx.
Paul J. Larkin, Jr.: That's right. So, when I was answering Justice White's question, what I was trying to say was you could have prize lists that show up in circulars because that's what happened in the Horner case. But the part of the statute that you have at issue under the district court's judgment is the part of the statute that's designed to deal with newspapers. So, as a factual historical matter, you could have a prize list show up in a circular. And the circular clause that you mentioned would cover it.
Speaker: xxx.
Paul J. Larkin, Jr.: But when the prize list shows up in the newspaper, then it is covered by the clause that we're dealing with here because that was part of the 1890--
Antonin Scalia: But doesn't that leave Justice White's question still on the table then? What does it cover besides... besides advertisements? Isn't that kind of a prize list an advertisement?
Paul J. Larkin, Jr.: --I don't think so if it's just simply the list of the prizes they are going to award, Congress must have thought that that was specifically addressed by the prize list clause rather than the advertisement clause.
Byron R. White: Well, I... it seems to me that... I don't know why you care whether it's an ad or not. The ad... the ad provision has been sustained, and if all... if all non-editorial prize lists in a paper are ads, there's no problem. But I take it you concede that if the prize list is read to cover editorial prize lists, it's unconstitutional. Is that it?
Paul J. Larkin, Jr.: If the prize list clause is read to apply to a general news story?
Byron R. White: Uh-hum.
Paul J. Larkin, Jr.: We would... we would say that it would be unconstitutional in that respect.
Byron R. White: Well, all right. And so, what's the big problem in the case? If it covers... if it covers editorials... editorial prize lists, it's bad.
Paul J. Larkin, Jr.: Well, if--
Byron R. White: And If it covers paid-for prize lists, and... and if the ads... the ad provision covers paid-for prize lists, it's all right.
Paul J. Larkin, Jr.: --But if the newspaper is operating the lottery as... or is owned by the lottery, as happened in the 19th century, then you don't have a bona fide news story, and if they just list the prizes, then it would be within the prize list clause. As I tried to explain earlier, there were instances in the 19th century in which a lottery published what they called a lottery newspaper, and in that circumstance, just listing the prizes would not be a bona fide news story because it would be used commercially to promote the lottery. In fact, if you didn't include within the type of commercial speech that we're talking about here situations in which a lottery newspaper is covered, then you're creating an exemption that allows the lottery just to print something that they call a lottery newspaper and advertise their prize lists freely in that manner.
William H. Rehnquist: So, but the newspapers here don't plan to do that. There's no indication that they are going to do that, is there?
Paul J. Larkin, Jr.: No, I don't... do not believe so. But the statute was held facially invalid, and for that reason we think the district court was wrong. If the newspapers in this case became shareholders in a lottery, then you have a different story, and the question of the constitutionality or construction of the statute should be construed in that context. But here the district court held it facially invalid, and we don't think it's facially invalid. We think it can properly be applied. When it's read in the manner that we have suggested or when it's limited to the types of material that we have said the statute should be limited to, we think the statute is a lawful regulation of commercial speech under the Jackson, Rapler and Posadas cases. Rapler, for example, upheld this very statute, and Posadas upheld a very similar ban on casino gambling. As a matter of precedent, therefore, we think this statute passes muster, and we also think that precedent makes good policy sense. What you have here is a situation in which Congress has attempted to deal with a narrow category of materials such as firearms, alcohol, cigarettes, narcotics or legalized prostitution. These are areas that government has historically regulated under the morals head of its police power. One of the ways of regulating it is to limit advertising. This Court upheld the constitutionality of that judgment by Congress a century ago. We ask the Court to do so again today.
Anthony M. Kennedy: Counsel, if the newspapers were willing to forego all claims for equitable relief and to have this judgment vacated in... in its entirety, would the case then be moot?
Paul J. Larkin, Jr.: If the Court allowed them to dismiss their complaint, then there would be no... there would no longer be a case. But they... they don't have a right to dismiss their complaint because we filed our answer. And we would urge the Court not to grant the motion because this part of the statute was not changed by the most recent amendments. The constitutional question presented here, therefore, is one that is of practical importance to the Postal Service, and that the Postal Service would ask this Court to decide based on the record in our favor. Thank you.
William H. Rehnquist: Thank you, Mr. Larkin. Mr. DeVore?
P. Cameron DeVore: Mr. Chief Justice, and may it please the Court. The government has served up in its briefs and in oral argument today a number of historical examples of historical prize lists which may or may not be real today, but certainly are not things which are before the Court in this case. We submit that this case if over, that each side agrees that the other is entitled to the outcome that it seeks, and we ask the Court to close the case on the statutory construction point.
Anthony M. Kennedy: But you're not willing to have the entire judgment vacated.
P. Cameron DeVore: We are willing to have the entire judgment vacated, Justice Kennedy, but I think the Court in doing so should explain the logic used by the Court in reaching that point. And I think you must face the statutory construction point. The government and we basically agree that it is proper to construe the statute not to apply to fully protected speech, but I think in order to... to... to reach that point, you've got to go through some of the logic in the... in, for example, Catholic Bishop and DeBartolo from last term to understand where you... how you get there. It's not the sort of mootness situation that you find in a... oh, say, the DeFunis case or others where an intervening event has disposed of the case. Congress acted here and passed the Charitable Games Act and the Indian Gaming Statute after the Court noted jurisdiction on both appeals here. We dismissed our appeal on the advertising clause based on that intervening event. The prize list clause is all that's still before the Court. So, we agree with the government that the... the court went too far below. We didn't ask for a holding of facial unconstitutionality. The district court provided that because it was apparently concerned about the reach that the government argued for into news and editorial fully protected speech.
Byron R. White: Well, don't you... why don't you defend that?
P. Cameron DeVore: Well, I have... would have no doubt, Justice White, that if--
Byron R. White: The government concedes that--
P. Cameron DeVore: --this applied--
Byron R. White: --The government concedes that if you construe it to cover that, it's unconstitutional.
P. Cameron DeVore: --They did construe that... they did concede that here today to the Court in oral argument.
Byron R. White: Why do you want that vacated?
P. Cameron DeVore: Well, I would be pleased to have a... an eloquent holding of the Court that an... another holding of the Court, because there are many that the Court has done in the past, that a statute which would purport to apply to news and editorial copy would meet... would not meet the strict scrutiny test which I think was held by the district court. The district court just went a little too far in... in holding that it was facially unconstitutional and enjoining all applications, including applications not before the court.
Byron R. White: xxx left of the prize clause that if you eliminate news stories and editorials?
P. Cameron DeVore: I'm not sure I know the answer to that. The government has given some examples, possibly... and the example in the Horner case of circulars sent by a lottery sponsor to people who were already in the game may well be something that might be covered by it. But that--
Speaker: What about a--
P. Cameron DeVore: --is certainly not an advertisement in a newspaper.
Byron R. White: --What about... what about a so-called lottery newspaper, a lottery publishes a newspaper or a newspaper runs a lottery, whichever one you want to say?
P. Cameron DeVore: Well, the issue there would be one which would still be open to the Court if you accept the... either holding, either that this is... the statute is unconstitutional as applied to the only speech at issue in this case, news and editorial copy, or you simply say that as construed under Catholic Bishop and DeBartolo, you needn't reach those things. It would still be open to the Postal Service to attempt to apply it in a situation. Then the Court would be confronted or a court would be confronted with the question of whether you had commercial speech at all under the tests of... you know, adduced by the court, and then if you had commercial speech, whether in fact the regulation of that speech was permissible under Central Hudson.
William H. Rehnquist: What if we were to conclude for one reason or another, Mr. DeVore, that the statute should be construed to cover only the sort of commercial speech that you've adverted to and Mr. Larkin has adverted to? what... what does... what does that do to the judgment here? The judgment of the district court is... is too broad.
P. Cameron DeVore: It's too broad. Really, the only thing before the Court is news and editorial copy. The only point I'd make, Justice Rehnquist, on the construction point is that I think that where the government gets off track in application of the construction cases, Catholic Bishop and DeBartolo, is that Instead of stopping at the stopping point that that prudential rule is designed to achieve for the Court, namely, avoiding the decision of constitutional issues if you don't find a clear intent of Congress to cover the thing that's before the Court in the case... what the government does is to say... it goes a step further and says what the statute still covers is commercial speech. The Court simply need not decide under Catholic bishop or DeBartolo what's left under the statutory section.
William H. Rehnquist: So, you say that all you're asking for is the sort of relief that will exclude newspaper stories about lotteries, which the government concedes the statute doesn't cover.
P. Cameron DeVore: That is all the relief we've ever sought in regard to the prize list clause--
William H. Rehnquist: And therefore, the... the district court went too far--
P. Cameron DeVore: --That's right.
William H. Rehnquist: --but that we should not go beyond what you've asked for and construe the statute other than it's saying it does not apply to what you're trying to do.
P. Cameron DeVore: I believe that's correct. The Court does not need to do that.
William H. Rehnquist: Did you try this case below, Mr. DeVore?
P. Cameron DeVore: Pardon me, sir?
Harry A. Blackmun: Did you try this case before Judge Magnuson?
P. Cameron DeVore: No, I did not. I was not present when the case was tried with Judge Magnuson, but I have reviewed the... all the documents that were filed with the court.
Harry A. Blackmun: Was there an attempt to keep him within bounds along the lines that have been discussed this morning?
P. Cameron DeVore: There really was not that kind of discussion. The government's brief... memorandum argued in the alternative to the court that... that if the statute were to be applied to news and editorial copy, that it would meet the strict scrutiny tests of fully protected speech. But if it did not and if the court held it only to apply to commercial speech, then it applied the commercial speech analysis.
Harry A. Blackmun: So, you feel the government would change its position from the position it took below before Judge Magnuson.
P. Cameron DeVore: From reading... from reading the... the government's memorandum in the case, I would say that the government has not changed its position.
Byron R. White: Well, didn't the newspaper, though, take the position that the... that the prize clause was unconstitutional on its face? Didn't they ask for a judgment like that?
P. Cameron DeVore: No, they did not, Mr. Justice White.
Speaker: They did not.
P. Cameron DeVore: They asked solely for a judgment that it was unconstitutional as applied to news and editorial copy.
Byron R. White: So, you don't think there was any case or controversy before the court on non-editorial prize lists.
P. Cameron DeVore: I think once you've gone through the construction analysis, no controversy remains in this case.
Sandra Day O'Connor: Well, I thought the newspapers had also asked to invalidate the... the requirement concerning ads.
P. Cameron DeVore: Yes, indeed, they did, Justice O'Connor.
Sandra Day O'Connor: I mean, more was asked below--
P. Cameron DeVore: Exactly.
Sandra Day O'Connor: --than we have before us now. So--
P. Cameron DeVore: And quite frankly, below the advertising clause was the one that loomed most important in the minds of the newspaper because they were under that clause--
Sandra Day O'Connor: --Well, yes, that's their revenue.
P. Cameron DeVore: --That's right.
Sandra Day O'Connor: That was what they were in there to litigate. Isn't that right?
P. Cameron DeVore: They were prevented from... from running... by the Postal Service applying that from running advertisements of locally legal lotteries in Minnesota--
Sandra Day O'Connor: But that issue is now out of the case.
P. Cameron DeVore: --Yes, it's gone. It's gone. Congress fixed that or at least they fixed it to the satisfaction of the papers.
Byron R. White: Well... well-- --Well, that's right. It's-- --But I... but why should that part of the Judgment... if you don't want to defend that or attack that judgment, why shouldn't that part of the judgment... why should that be vacated?
P. Cameron DeVore: I'm not suggesting that the advertising judgment should be vacated.
Byron R. White: Okay. So, the... that... the the advertising clause... the judgment upholding that stands.
P. Cameron DeVore: That stands. I mean, it was prize lists and nothing but prize lists, Justice White.
Byron R. White: Okay. Well, but in... in fact, you... you don't... the only reason it's out of the case is not because you agree with the government on it, but because you are affected by that decision for one year until the new statute comes into effect.
P. Cameron DeVore: Actually 18 months, Justice Scalia.
Speaker: Eighteen months.
P. Cameron DeVore: Yes.
Antonin Scalia: And you just... you just say, well, we don't care anymore. It isn't--
P. Cameron DeVore: Well--
Antonin Scalia: --It's not that you're in legal agreement at all.
P. Cameron DeVore: --No, that's correct.
Antonin Scalia: And it's... and it's not that you're not affected by it. You are affected by it. You just don't... you just now no longer want to litigate over... over that effect. Right?
P. Cameron DeVore: We will be affected by it... the newspapers in Minnesota and elsewhere... until May of 1990.
Byron R. White: But the judgment stands.
P. Cameron DeVore: The judgment stands.
Byron R. White: Yes.
P. Cameron DeVore: That's right.
William H. Rehnquist: Well, when you say the judgment stands, let me--
P. Cameron DeVore: The dismissal. The dismissal stands and that is no longer at issue in the case.
William H. Rehnquist: --You have dismissed your appeal.
P. Cameron DeVore: That's correct.
William H. Rehnquist: Okay. So, it's stands simply because there was an adverse judgment entered in the district court to you and you have not appealed from it.
P. Cameron DeVore: That is the... that's the net result of where we are. I would like... not that the Court needs reminding in great detail about Catholic Bishop and DeBartolo, but I think it's important to address a question that Justice Scalia put to the government about the legislative history of this... of this statute. And incidentally, on February 21, I contacted the Deputy Solicitor General, after we had gotten deeply into the briefing process, and suggested a joint motion to this Court based on what was then the agreed construction of this statute to ask the Court to dismiss this case, vacate the judgment below. So, we... we felt, at least a month ago, that... that this was the result that was certainly acceptable to us. The statutory construction analysis of the... of NLRB v. Catholic Bishop really fits this case like a glove. In that case, the Court will recall the National Labor Relations Board had applied the jurisdiction under the NLRA to some mixed religious and secular schools in the... in the Archdiocese of Chicago. That was appealed by the... by the Archbishop, and it went to the Seventh Circuit which held that application facially unconstitutional. That was, in turn, appealed by the board to this Court. And this Court determined that under the... going back to Mr. Justice Marshall's opinion in Murray v. The Charming Betsy in 1804, the prudential notion that this Court shouldn't decide constitutional questions and get into the actions of Congress on... to judge them constitutionally unless there really were a reason to do so. If that could be avoided by construction, the Court should do it. In Catholic Bishop, the Court announced a version of that rule which I think is a little more precise and objective than earlier versions. What it said was that a two-step test should be applied. Number one... this was a narrow question... if the application of the statute... too in this case it was the religious activity, another clause of the First Amendment... was such as to raise this kind of sensitive constitutional issue, then you went to the words. You went to Congress and you went to the act. You went to the legislative history and you found out if, in fact, it was a clearly expressed intention of Congress to apply the broad language of the... in this case the jurisdiction clause of the act... to this kind of sensitive activity. And if you didn't find that, absent that, then it was to be construed not to apply. Now, the same... the Court was divided in Catholic Bishop. The Court really joined last year in DeBartolo v. Florida Building Trades and applied what it called the traditional rule of Catholic Bishop in a similar situation dealing directly with speech in a peaceful hand-billing situation in a Florida shopping mall. I think it's terribly important that what those cases hold applies here in that a careful reading, Justice Scalia, of the... not just the... the Anti-Lottery Act of 1890, but the many pages of text of the House report, and all of the reports in the history, you simply find no expression on the part of the sponsors of the bill to apply this to news and editorial. It seemed fairly clear that at least as far as newspapers were concerned... and newspapers were added to the Act, as the Government has said, for the first time in 1890. What they were concerned about was the advertising. They mentioned the prize lists, but it appeared to be their assumption that that was something which, as far as newspapers went, was included within advertising. There was no expression of any intent to cover news and editorial. And [inaudible] cases--
Antonin Scalia: I assume that Marbury v. Madison would have come out differently on that kind of a theory. The difficult constitutional question of whether a mandamus could have applied to a... to a cabinet officer being so difficult and Congress not having explicitly said in the statute at issue whether mandamus would apply to a high level cabinet officer, we wouldn't have reached the issue, would we? We... we would have just said this statute does not apply to cabinet officers.
P. Cameron DeVore: --I believe that's correct, Justice--
Antonin Scalia: Boy, it's going to change a lot of our law, isn't it? [Laughter]
P. Cameron DeVore: --Well, in any event, it is... it is... we agree with the government. The government, as I said earlier, went a... went a little different direction after citing DeBartolo and Catholic Bishop at page 28 of their brief to this Court, and went on not just to stop with what the Act does not cover, avoiding the constitutional problem here, but went on to say what the Act does cover. And I think a great deal of attention has been given by the government to deciding what is commercial speech, what would it apply to other kinds of lotteries that newspapers might or might not be involved in or other parties, professional gamblers might or might not be involved in. But because the only issue before this Court is the application to the fully protected news and editorial speech about lotteries, we submit that your... your prudential construction rules get us to a common stopping place. And we ask that the Court vacate the judgment below based on that analysis and lift the injunction in the case.
Byron R. White: And not try to define or redefine commercial speech?
P. Cameron DeVore: We don't think that those sensitive issues are before the Court today.
Anthony M. Kennedy: Vacate the entire judgment?
P. Cameron DeVore: Yes, Justice Kennedy.
Speaker: Well, not the advertising.
P. Cameron DeVore: I'm sorry. That... vacate the entire judgment as to the prize list clause. The advertising judgment of the court will stand.
Antonin Scalia: Do we vacate or do we... do we remand with instructions as... as we did in the case... what was it... Deakins, the case you cite to support--
P. Cameron DeVore: Deakins v. Monaghan.
Antonin Scalia: --We... we directed the... the court to dismiss with prejudice. Is that... is that what--
P. Cameron DeVore: I puzzled over the--
Anthony M. Kennedy: --you're willing to have entered here?
P. Cameron DeVore: --I puzzled over the kind of metaphysical differences between reversal and vacation and dismissal with prejudice. I think that--
Antonin Scalia: Dismissal with prejudice sounds worse to me, don't you think?
P. Cameron DeVore: --It sounds... it sounds awful.
Antonin Scalia: It sounds a little worse. [Laughter] But that's what we did in--
P. Cameron DeVore: We would have no... no objection assuming the Court analyzes this from a construction point of view and does not apply it to the speech we brought to the Court, as a matter of concern under the prize list clause, then the vacation of the facial holding below with prejudice is of no concern to us. But we would ask, given the government's change of position, given the... the concession in the government's brief at page 9 of their reply brief, that, in fact, there is confusion in the Postal Service, we would ask that the Court articulate the reason for this so there is some guidance, as counsel for the government has asked, for those Postal Service employees that this does not reach into news and editorial copy.
William H. Rehnquist: --Well, I don't think we're quite as limited as you suggest in the extent to which we can review the judgment of the district court. The district court held the statute unconstitutional on its face. The government has appealed from that ruling. And the fact that you don't see... that the sort of construction which the government wants to put on it to save it from being held unconstitutional on its face would not hurt you doesn't at this stage of the litigation mean that we couldn't write an opinion, it seems to me, upholding the government's position and still not hurt you in any way. That would mean that the judgment of the district court would be reversed.
P. Cameron DeVore: Yes, if I understand, Justice Rehnquist. You could certainly write... if the government's position is that it's not to be construed to be applied to this kind of speech, I would have certainly no... we would have certainly no objection to that kind of decision of the Court.
William H. Rehnquist: Well, and of course we write lots of opinions to which counsel do have objection. [Laughter]
P. Cameron DeVore: Yes, right. But I just want to make clear whatever... however the Court writes it... and I think there are, as Justice Scalia suggests, there are several ways around the barn to accomplish that result. And I don't know what the exact word is to describe what the Court does, but we certainly feel that as far as this case is concerned... and it's the application of this clause, the news and editorial copy, the case is over because we do accept that construction as... as required by your authorities.
Sandra Day O'Connor: Well, it sounds like you'd be satisfied if we vacated, reversed or affirmed. Isn't that right?
P. Cameron DeVore: Well, we... we have certainly not asked that it be affirmed, and I suspect it would not be proper for the Court to do that.
Sandra Day O'Connor: That would reach the result you would be happy with.
P. Cameron DeVore: But that would, in fact... somewhat probably ironically, it would have the same result in regard to the speech at issue in the case today.
Antonin Scalia: You're clear that you want this case off our docket, though. Right? [Laughter]
P. Cameron DeVore: I think my feeling is sufficient unto the day to resolve the other sensitive issues raised by the government in the case. Thank you.
William H. Rehnquist: Thank you, Mr. DeVore. Mr. Larkin, you have four minutes remaining.
Paul J. Larkin, Jr.: Just a few points, Your Honor. I think it was Justice O'Connor asked about the scope of the relief they asked for. The scope of the relief they asked for in district court was not limited to advertisements and news stories. Page 8 of the joint appendix reprints their request, and they ask the statute to be held void to the extent they prohibit or interfere with the publication of information about lawful gaming activities regardless of the form. So, they asked for the statute to be held invalid insofar as it prevented them from publishing any information about lawful gaming activities, not just advertisements and not just news stories. Secondly, I don't think it is we that have changed our position in this case. After all, the Appellee filed a motion to affirm in which it asked this Court summarily to affirm the judgment below. Appellee has now said that it doesn't mind if the case is affirmed, reversed, vacated or disposed of in some other manner. But our construction of the statute has been consistent throughout. We asked the district court not to read the statute to apply to news stories. We ask the Court not to read the statute that way today. We ask the Court to uphold the statute in the manner we have suggested. Thank you.
William H. Rehnquist: Thank you, Mr. Larkin. The case is submitted.