Request By:
Hon. Helen Garrett
Senate Majority Whip
Commonwealth of Kentucky
2nd District, Capitol Building
Frankfort, KY 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Kenneth A. Meng, Assistant Attorney General
We have reviewed and researched your questions regarding the constitutionality of KRS 436.420 in light of the First Amendment to the United States Constitution. For reasons hereinafter stated, we believe the statute is unconstitutional. 1
KRS 436.420 prohibits newspapers from advertising lotteries or any information concerning them. It is a penal statute carrying a fine of not less than one thousand dollars nor more than five thousand dollars and imprisonment for 30 to 60 days. The statute was enacted by the Legislature as a public health, safety, or welfare measure within the police powers of the Commonwealth.
At the outset it should be noted that the statute has been partially pre-empted by 18 U.S.C. Sections 1301 et seq. These federal laws allow the publication of advertisements and information concerning a lottery conducted by a state in newspapers published in that state or in an adjacent state which conducts such a lottery. The United States Congress is currently considering amending the laws to allow nationwide advertising of lotteries.
Advertisements are a form of commercial speech protected by the free speech principles of the First Amendment and applicable to the states via the Fourteenth Amendment. The First Amendment protects commercial speech, that is, expression related solely to the economic interests of the speaker and its audience, from unwarranted governmental regulation. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976); Bates v. State Bar of Arizona, 43 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977).
Lotteries and gift enterprises are prohibited by Kentucky Constitution Section 226. However, as you are no doubt aware, several other states either allow or conduct lotteries. The issue presented then is this: "Can a state prohibit the advertisement of a lottery that is legal in the state where it is conducted but illegal in the state in which the advertisement is published?"
The United States Supreme Court, in Bigelow v. Virginia, 421 U.S. 809 (1975), answered the question NO. In Bigelow a Virginia newspaper editor was convicted of violating a state statute prohibiting the circulation or publication of material that encouraged the processing of an abortion. The advertisement concerned the arrangement of low-cost placements in New York City for women with unwanted pregnancies. (Abortions were legal in New York City.) Mr. Justice Blackmun, writing for the Court, stated:
"A state does not acquire power or supervision over the internal affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state." Bigelow, at 824-825.
We believe the scope of the statute is substantially overbroad in the speech it is designed to curtail. First, it prohibits the advertising of lawful lotteries. Secondly, it prohibits the publication of "any information about lotteries. " This prohibits not only the advertising of lotteries but goes even further and seeks to prohibit language that many would view as "newsworthy." For example, a man recently won a $22 million dollar lottery in New York City and received substantial news coverage. KRS 436.420 prohibits the publication of any information about the man's good fortune. This, of course, has a chilling effect on a publisher's First Amendment right to free speech.
Footnotes
Footnotes
1 This opinion has the practical effect of overruling OAG 81-138. That opinion dealt with the effect of KRS 528.010(10) [Charitable Gaming Statute] on KRS 436.420. The opinion request in OAG 81-138 did not raise the First Amendment issue.