Scholar argues that restrictions on sports-betting advertising can align with commercial free speech protections.
Anyone who ventures online these days will see sports-betting advertisements everywhere. The omnipresence of these ads stems from a 2018 U.S. Supreme Court decision that struck down a decades-old ban on sports betting. Since then, 38 states have legalized sports betting. Advertising has followed, raising concerns about harmful effects, including problem gambling and underage involvement.
Regulators face an important question: Can anything be done to limit the prevalence of advertising for sports gambling in an age of heightened commercial speech protection? Mark Conrad, a professor at Fordham University confronts this question in a recent article, proposing that the Federal Communications Commission (FCC) use its power over broadcasting to regulate sports-betting advertisements.
Conrad explains that rules governing sports-betting advertising, which vary by state, are often narrowly focused on prohibiting “false and deceptive” ads and requiring disclosures about responsible gambling. Although these rules help to deter underage gambling and to reduce the risk of gambling addictions, Conrad contends that they are inadequate to address the full range of harms that sports-betting ads pose.
What about ads that are not false and deceptive? Conrad argues that the sheer volume of sports-betting advertisements contributes to rising rates of problem gambling and warrant greater regulation, even when the ads themselves are not misleading. He contends that a broader approach on the national level, centered on broadcast media, would complement the current state-by-state patchwork and better address gambling harms.
Such broad restrictions on advertising would, however, face constitutional barriers. Conrad observes that courts in recent decades have shown increasing sympathy for commercial speech protections.
Although commercial speech has no formal definition, the U.S. Supreme Court and lower courts have adhered to a “‘common-sense’ distinction between speech proposing a commercial transaction and other varieties of speech.” Before commercial speech had First Amendment protections, courts upheld restrictions on so-called sin product advertising as part of a state’s power to protect health and safety. As Conrad explains, the idea of commercial speech protections gained traction in the late 1960s and early 1970s, with the Court expressly extending First Amendment protection to commercial speech for the first time in 1975.
Since 1980, the standard used by courts to evaluate restrictions on commercial speech has been the Central Hudson test. Conrad describes the elements required to justify restricting commercial speech under Central Hudson: “the government must show that the restriction had a substantial government interest; the restriction directly advances the state’s interest; and the restriction is not more restrictive than necessary to advance that interest.”
If done the right way, broader restrictions on sports-betting advertising can satisfy the Central Hudson standard, Conrad contends. He argues that regulating sports-gambling ads made over public broadcasting channels is the best way to reconcile constitutional protections for free speech and limits on harmful advertising. He identifies the FCC as the agency best positioned to carry out this plan because it exercises broader authority over broadcast content than any other part of government does over other forms of speech.
A critical aspect of the FCC’s authority is its power to restrict “indecent” broadcasts to late-night hours, when children are unlikely to be tuning in. Courts have upheld this practice because of the FCC’s enhanced broadcasting oversight authority and because children can easily access broadcast media. Conrad proposes extending the indecency framework to sports-betting ads, arguing that the FCC could invoke its powers to impose time-based limits on gambling promotions, given the risks they pose to young audiences.
Conrad suggests prohibiting sports-betting ads during hours when children are most likely to watch television—such as between 6:00 a.m. and 10:00 p.m.—and limiting ads and the display of betting odds during sporting events. This “channeling” would directly advance the government’s interest in preventing minors from being enticed to gamble, while avoiding the constitutional concerns of an outright ban. Conrad argues that such restrictions would likely satisfy the Central Hudson test because they serve a substantial governmental interest, advance that interest in a direct way, and are not more restrictive than necessary.
Conrad classifies time-based restrictions as a reasonable and legally justifiable step toward limiting children’s exposure to sports betting and preventing further problem gambling. The FCC’s indecency framework, he concludes, provides a workable guide for regulators seeking to balance commercial speech protections with the government’s interest in shielding vulnerable audiences.
