source: Caselaw Access Project

author: Justice Breyer Chief Justice Rehnquist,

license: Public Domain

text:
    DICKINSON, ACTING COMMISSIONER OF PATENTS AND TRADEMARKS v. ZURKO et al.
    No. 98-377.
    Argued March 24, 1999
    Decided June 10, 1999

      Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Scaua, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Kennedy and Ginsburg, JJ., joined, post, p. 170.

      Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Edward C. DuMont, William Ranter, Bruce G. Forrest, Albín F. Drost, Karen A. Buchanan, and Kenneth R. Corsello.

      Ernest Gellhorn argued the cause for respondents. With him on the brief were Jeffrey S. Lubbers, Ann G. Weymouth, Janice M. Mueller, and Russell Wong.

      Briefs of amici curiae urging reversal were filed for Intellectual Property Professors by John F. Duffy and Thomas G. Field, Jr.; and for Theis Research, Inc., by Paul R. Johnson.

      Briefs of amici curiae urging affirmance were filed for the Biotechnology Industry Organization by Scott F. Partridge, Bob E. Shannon, and Scott K Field; for the Houston Intellectual Property Law Association by Jeffrey W. Tayon; for the International Trademark Association by Albert Robin; for the New York Intellectual Property Law Association by Bruce

        M. Wexler and Howard B. Bamaby; for the Patent, Trademark & Copyright Section of the Bar Association of the District of Columbia by Lynn Eccleston, David W. Long, and Harold Wegner; for Pharmaceutical Research and Manufacturers of America by Gerald J. Mossinghoff; and for John P. Sutton, pro se.

      Briefs of amici curiae were filed for the Dallas-Fort Worth Intellectual Property Law Association by D. Scott Hemingway; and for Intellectual Property Creators et al. by David Roy Pressman, pro se.

   Justice Breyer

delivered the opinion of the Court.

The Administrative Procedure Act (APA) sets forth standards governing judicial review of findings of fact made by federal administrative agencies. 5 U. S. C. §706. We must decide whether §706 applies when the Federal Circuit reviews findings of fact made by the Patent and Trademark Office (PTO). We conclude that it does apply, and the Federal Circuit must use the framework set forth in that section.

I

Section 706, originally enacted in 1946, sets forth standards that govern the “Scope” of court “review” of, e.g., agency factfinding (what we shall call court/agency review). It says that a

“reviewing court shall—
“(2) hold unlawful and set aside agency . . . findings ... found to be—
“(A) arbitrary, capricious, [or] an abuse of discretion, or...
“(E) unsupported by substantial evidence in a ease subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute;...
“In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party ...

Federal Rule of Civil Procedure 52(a) sets forth standards that govern appellate court review of findings of fact made by a district court judge (what we shall call court/court review). It says that the appellate court shall set aside those findings only if they are “clearly erroneous.” Traditionally, this eourt/court standard of review has been considered somewhat stricter (i. e., allowing somewhat closer judicial review) than the APA’s court/agency standards. 2 K. Davis & R. Pierce, Administrative Law Treatise §11.2, p. 174 (3d ed. 1994) (hereinafter Davis & Pierce).

The Court of Appeals for the Federal Circuit believes that it should apply the “clearly erroneous” standard when it reviews findings of fact made by the PTO. In re Zurko, 142 F. 3d 1447, 1459 (1998) (ease below). The Commissioner of Patents, the PTO’s head, believes to the contrary that ordinary APA court/agency standards apply. See, e. g., In re Kemps, 97 F. 3d 1427, 1430-1431 (CA Fed. 1996); In re Napier, 55 F. 3d 610, 614 (CA Fed. 1995); In re Brana, 51 F. 3d 1560, 1568-1569 (CA Fed. 1995).

The case before us tests these two competing legal views. Respondents applied for a patent upon a method for increasing computer security. The PTO patent examiner concluded that respondents’ method was obvious in light of prior art, and so it denied the application. See 35 U. S. C. § 103 (1994 ed., Supp. III). The PTO’s review board (the Board of Patent Appeals and Interferences) upheld the examiner’s decision. Respondents sought review in the Federal Circuit, where a panel treated the question of what the prior art teaches as one of fact, and agreed with respondents that the PTO’s factual finding was “clearly erroneous.” In re Zurko, 111 F. 3d 887, 889, and n. 2 (1997).

The Federal Circuit, hoping definitively to resolve the review-standard controversy, then heard the matter en banc. After examining relevant precedents, the en bane court concluded that its use of the stricter court/court standard was legally proper. The Solicitor General, representing the Commissioner of Patents, sought certiorari. We granted the writ in order to decide whether the Federal Circuit’s review of PTO factfinding must take place within the framework set forth in the APA.

rH 1 — I

The parties agree that the PTO is an “agency subject to the APA’s constraints, that the PTO’s finding at issue in this case is one of fact, and that the finding constitutes “agency action.” See 5 U. S. C. §701 (defining “agency” as an “authority of the Government of the United States”); § 706 (applying APA “Scope of review” provisions to “agency action”). Hence a reviewing court must apply the APA’s court/agency review standards in the absence of an exception.

The Federal Circuit rests its claim for an exception upon §559. That section says that the APA does “not limit or repeal additional requirements . .. recognized by law.” In the Circuit’s view: (1) at the time of the APA’s adoption, in 1946, the Court of Customs and Patent Appeals (CCPA), a Federal Circuit predecessor, applied a court/court “clearly erroneous” standard; (2) that standard was stricter than ordinary court/agency review standards; and (8) that special tradition of strict review consequently amounted to an “additional requirement” that under §559 trumps the requirements imposed by §706.

Recognizing the importance of maintaining a uniform approach to judicial review of administrative action, see, e. g., Universal Camera Corp. v. NLRB, 340 U. S. 474, 489 (1951); 92 Cong. Rec. 5654 (1946) (statement of Rep. Walter), we have closely examined the Federal Circuit’s claim for an exception to that uniformity. In doing so, we believe that respondents must show more than a possibility of a heightened standard, and indeed more than even a bare preponderance of evidence in their favor. Existence of the additional requirement must be clear. This is suggested both by the phrase “recognized by law” and by the congressional specification in the APA that “[n]o subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.” § 12, 60 Stat. 244, 5 U. S. C. §559. A statutory intent that legislative departure from the norm must be clear suggests a need for similar clarity in respect to grandfathered common-law variations. The APA was meant to bring uniformity to a field full of variation and diversity. It would frustrate that purpose to permit divergence on the basis of a requirement “recognized” only as ambiguous. In any event, we have examined the 89 cases which, according to respondents and supporting amici, embody the pre-APA standard of review. See App. to Brief for New York Intellectual Property Law Association as Amicus Curiae 1a-6a (collecting eases), and we conclude that those cases do not reflect a well-established stricter court/court standard of judicial review for PTO factfinding, which circumstance fatally undermines the Federal Circuit’s conclusion.

The 89 pre-APA eases all involve CCPA review of a PTO administrative decision, which either denied a patent or awarded priority to one of several competing applicants. See 35 U. S. C. § 59a (1934 ed.) (granting CCPA review authority over PTO decisions); 35 U. S. C. § 141 (current grant of review authority to the Federal Circuit). The major consideration that favors the Federal Circuit’s view consists of the fact that 23 of the cases use words such as “clear case of error” or “clearly wrong” to describe the CCPA’s review standard, while the remainder use words such as “manifest error,” which might be thought to mean the same thing. See App. to Brief for New York Intellectual Property Law Association as Amicus Curiae 1a-6a. When the CCPA decided many of these eases during the 1930’s and early 1940’s, legal authorities had begun with increasing regularity to use the term “clearly erroneous” to signal court/court review, Fed. Rule Civ. Proc. 52(a) (adopted in 1987), and the term “substantial evidence” to signal less strict court/agency review. Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 Harv. L. Rev. 70, 88 (1944) (describing congressional debates in which members argued for and against applying the “clearly erroneous” standard to agency review “precisely because it would give administrative findings less finality than they enjoyed under the ‘substantial evidence* rule”).

Yet the presence of these phrases is not conclusive. The relevant linguistic conventions were less firmly established before adoption of the APA than they are today. At that time courts sometimes used words such as “clearly erroneous” to describe less strict court/agency review standards. See, e. g., Polish National Alliance v. NLRB, 136 F. 2d 175, 181 (CA7 1943); New York Trust Co. v. SEC, 131 F. 2d 274, 275 (CA2 1942), cert. denied, 318 U. S. 786 (1943); Hall v. Commissioner, 128 F. 2d 180, 182 (CA7 1942); First National Bank of Memphis v. Commissioner, 125 F. 2d 157 (CA6 1942) (per curiam); NLRB v. Algoma Plywood & Veneer Co., 121 F. 2d 602, 606 (CA7 1941). Other times they used words such as “substantial evidence” to describe stricter court/ court review (including appeals in patent infringement cases challenging district court factfinding). See, e. g., Cornell v. Chase Brass & Copper Co., 142 F. 2d 157, 160 (CA2 1944); Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 139 F. 2d 473, 475 (CA6 1943), aff'd, 324 U. S. 320 (1945); Gordon Form Lathe Co. v. Ford Motor Co., 133 F. 2d 487, 496-497 (CA6), aff’d, 320 U. S. 714 (1943); Electro Mfg. Co. v. Yellin, 132 F. 2d 979, 981 (CA7 1943); Ajax Hand Brake Co. v. Superior Hand Brake Co., 132 F. 2d 606, 609 (CA7 1943); Galion Iron Works & Mfg. Co. v. Beckwith Machinery Co., 105 F. 2d 941, 942 (CA3 1939). Indeed, this Court itself on at least one occasion used the words “substantial evidence” to explain why it would not disturb a trial court’s factual findings. Borden’s Farm Products Co. v. Ten Eyck, 297 U. S. 251, 261 (1986); see also Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412, 420 (1937) (accepting trial court’s findings of fact because they have “substantial support in the record”).

Nor is the absence of the words “substantial evidence” in the CCPA’s eases especially significant. Before the APA, the use of that term to describe court/agency review proceeded by fits and starts, with the standardization of the term beginning to take hold only after Congress began using it (or the like) in various federal statutes. For example, this Court first used the phrase “substantial evidence” in the agency context to describe its approach to the Interstate Commerce Commission’s (ICC’s) factual findings, ICC v. Union Pacifijc R. Co., 222 U. S. 541, 548 (1912), even though the underlying statute simply authorized a court of competent jurisdiction to suspend or set aside orders of the Commission, § 12, 36 Stat. 551. The Court did not immediately grant the Federal Trade Commission the same leeway it granted the ICC, see FTC v. Curtis Publishing Co., 260 U. S. 568, 580 (1923), even though the underlying Act used language to which the phrase “substantial evidence” might have applied, see §5,38 Stat. 720 (the “findings of the commission as to the facts, if supported by testimony, shall be conclusive”). As the words “substantial evidence” began to appear more often in statutes, the Court began to use those same words in describing review standards, sometimes supplying the modifier “substantial” when Congress had left it out. See, e. g., Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938); see Stason, “Substantial Evidence” in Administrative Law, 89 U. Pa. L. Rev. 1026, 1026-1028 (1941) (collecting statutes); see also Dobson v. Commissioner, 320 U. S. 489, 499 (1943) (speaking generally of the “theoretical and practical reasonfs] for . . . [crediting] administrative decisions”). The patent statutes, however, did not and do not use the term “substantial evidence” or any other term to describe the standard of court review. 35 U. S. C. §§ 61, 62 (1934 ed.). Indeed, it apparently remains disputed to this day (a dispute we need not settle today) precisely which APA standard — “substantial evidence” or “arbitrary, capricious, abuse of discretion” — would apply to court review of PTO factfinding. See 5 U. S. C. §706(2)(E) (applying the term “substantial evidence” where agency factfinding takes place “on the record”); see also Association of Data Processing Service Orgs., Inc. v. Board of Governors of Federal Reserve System, 745 F 2d 677, 683-684 (CADC 1984) (Sealia, J.) (finding no difference between the APA’s “arbitrary, capricious” standard and its “substantial evidence” standard as applied to court review of agency factfinding.)

Further, not one of the 89 opinions actually uses the precise words “clear error” or “clearly erroneous,” which are terms of art signaling court/court review. Most of the 89 opinions use words like “manifest error,” which is not now such a term of art.

At the same time, precedent from this Court undermines the Federal Circuit’s claim that the phrases “clearly wrong” or “manifest error” signal court/court review. The Federal Circuit traced its standard of review back to Morgan v. Daniels, 153 U. S. 120 (1894), which it characterized as the foundation upon which the CCPA later built its review standards. 142 F. 3d, at 1453-1454. We shall describe that case in some detail.

Morgan arose out of a Patent Office interference proceeding — a proceeding to determine which of two claimants was the first inventor. The Patent Office decided the factual question of “priority” in favor of one claimant; the Circuit Court, deciding the ease “without any additional testimony,” 153 U. S., at 122, reversed the Patent Office’s factual finding and awarded the patent to the other claimant. This Court in turn reversed the Circuit Court, thereby restoring the Patent Office decision.

“What,” asked Justice Brewer for the Court, “is the rule which should control the [reviewing] court in the determination of this case?” Ibid. Is it that the Patent Office decision “should stand unless the testimony shows beyond any reasonable doubt that the plaintiff was the first inventor”? Id., at 123. The Court then cited two cases standing for such a “reasonable doubt” standard. Ibid, (citing Cantrell v. Wallick, 117 U. S. 689, 695 (1886), and Coffin v. Ogden, 18 Wall. 120, 124 (1874)). The Court found the two cases “closely in point.” 153 U. S., at 123. Justice Brewer wrote that a person “challenging the priority awarded by the Patent Office . . . should ... be held to as strict proof. ” Ibid. (emphasis added). The Court, pointing out that the Circuit Court had used language “not quite so strong” (namely, “a clear and undoubted preponderance of proof”), thought that the Circuit Court’s standard sounded more like the rule used by “an appellate court in reviewing findings of fact made by the trial court.” Ibid. The Court then wrote:

“But this is something more than a mere appeal. It is an application to the court to set aside the action of one of the executive departments of the government. ... A new proceeding is instituted in the courts ... to set aside the conclusions reached by the administrative department .... It is . . . not to be sustained by a mere preponderance of evidence.... It is a controversy between two individuals over a question of fact which has once been settled by a special tribunal, entrusted with full power in the premises. As such it might be well argued, were it not for the terms of this statute, that the decision of the patent office was a finality upon every matter of fact.” Id., at 124 (emphasis added).

The Court, in other words, reasoned strongly that a court/ court review standard is not proper; that standard is too strict; a somewhat weaker standard of review is appropriate.

We concede that the Court also used language that could be read as setting forth a court/court standard of review. It said, for example, that the

“Patent Office [decision] must be accepted as controlling upon that question of fact . . . unless the contrary is established by testimony which . . . carries thorough conviction. ... [I]f doubtful, the decision of the Patent Office must control.” Id., at 125 (emphasis added).

It added that the testimony was “not... sufficient to produce a clear conviction that the Patent Office made a mistake.” Id., at 129 (emphasis added). But the Court did not use the emphasized words today; it used those words more than 100 years ago. And its reasoning makes clear that it meant those words to stand for a court/agency review standard, a standard weaker than the standard used by “an appellate court in reviewing findings of fact made by the trial court.” Id., at 123.

The opinions in the 89 CCPA cases, cataloged in the Appendix to this opinion, reveal the same pattern. They use words such as “manifest error” or “clearly wrong.” But they use those words to explain why they give so much, not so little, deference to agency factfinding. And, their further explanations, when given, indicate that they had court/ agency, not court/court, review in mind.

In nearly half of the eases, the CCPA explains why it uses its “manifest error” standard by pointing out that the PTO is an expert body, or that the PTO can better deal with the technically complex subject matter, and that the PTO consequently deserves deference. In more than three-fourths of the eases the CCPA says that it should defer to PTO fact-finding because two (and sometimes more) PTO tribunals had reviewed the matter and agreed about the factual finding. These reasons are reasons that courts and commentators have long invoked to justify deference to agency factfinding. See Universal Camera, 340 U. S., at 496-497 (intraagency agreement); NLRB v. Link-Belt Co., 311 U. S. 584, 597 (1941) (expertise); Rochester Telephone Corp. v. United States, 307 U. S. 125, 145-146 (1939) (expertise); ICC v. Louisville & Nashville R. Co., 227 U. S. 88, 98 (1913) (expertise); Stern, 58 Harv. L. Rev., at 81-82 (expertise); 2 Davis & Pierce § 11.2, at 178-181 (intraageney agreement). They are net the reasons courts typically have given for deferring to factfinding made by a lower court judge. See, e. g., Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 623 (1993); Stern, supra, at 82-83 (trial court advantages lie in, e. g., evaluation of witness, not comparative expertise). And we think it also worth noting, in light of the pre-APA movement toward standardization discussed above, supra, at 157, that the CCPA began to refer more frequently to technical complexity and agency expertise as time marched closer to 1946. Out of the 45 cases in our sample decided between 1929 and 1936, 40% (18 of 45) specifically referred to technical complexity. That percentage increased to 57% (25 of 44) for the years 1937 to 1946.

Given the CCPA’s explanations, the review standard’s origins, and the nondeterminative nature of the phrases, we cannot agree with the Federal Circuit that in 1946, when Congress enacted the APA, the CCPA “recognized” the use of a stricter court/court, rather than a less strict court/ agency, review standard for PTO decisions. Hence the Federal Circuit’s review of PTO findings of fact cannot amount to an “additional requirement] . . . recognized by law.” 5 U.S.C. §559.

III

The Federal Circuit also advanced several policy reasons which in its view militate against use of APA standards of review. First, it says that both bench and bar have now become used to the Circuit’s application of a “clearly erroneous” standard that implies somewhat stricter court/court review. It says that change may prove needlessly disruptive. 142 F. 3d, at 1457-1458. Supporting amici add that it is better that the matter remain “ ‘settled than that it be settled right.’ ” Brief for Patent, Trademark & Copyright Section of the Bar Association of the District of Columbia as Amicus Curiae 23 (quoting Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986)).

This Court, however, has not previously settled the matter. The Federal Circuit’s standard would require us to create §559 precedent that itself could prove disruptive by too readily permitting other agencies to depart from uniform APA requirements. And in any event we believe the Circuit overstates the difference that a change of standard will mean in practice.

This Court has described the APA eourt/agency “substantial evidence” standard as requiring a court to ask whether a “reasonable mind might aceept” a particular evidentiary record as “adequate to support a conclusion.” Consolidated Edison, 305 U. S., at 229. It has described the court/eourt “clearly erroneous” standard in terms of whether a reviewing judge has a “definite and firm conviction” that an error has been committed. United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). And it has suggested that the former is somewhat less strict than the latter. Universal Camera, 340 U. S., at 477, 488 (analogizing “substantial evidence” test to review of jury findings and stating that appellate courts must respect agency expertise). At the same time the Court has stressed the importance of not simply rubber-stamping agency factfinding. Id., at 490. The APA requires meaningful review; and its enactment meant stricter judicial review of agency factfinding than Congress believed some courts had previously conducted. Ibid.

The upshot in terms of judicial review is some practical difference in outcome depending upon which standard is used. The court/agency standard, as we have said, is somewhat less strict than the court/court standard. But the difference is a subtle one — so fine that (apart from the present case) we have failed to uncover a single instance in which a reviewing court conceded that use of one standard rather than the other would in fact have produced a different outcome. Cf. International Brotherhood of Electrical Workers v. NLRB, 448 F. 2d 1127, 1142 (CADC 1971) (Leventhal, J., dissenting) (wrongly believing — and correcting himself — that he had found the “case dreamed of by law school professors” where the agency’s findings, though “clearly erroneous,” were “nevertheless” supported by “substantial evidence”).

The difficulty of finding such a case may in part reflect the basic similarity of the reviewing task, which requires judges to apply logic and experience to an evidentiary record, whether that record was made in a court or by an agency. It may in part reflect the difficulty of attempting to capture in a form of words intangible factors such as judicial confidence in the fairness of the factfinding process. Universal Camera, supra, at 489; Jaffe, Judicial Review: “Substantial Evidence on the Whole Record,” 64 Harv. L. Rev. 1233, 1245 (1951). It may in part refleet the comparatively greater importance of case-specific factors, such as a finding’s dependence upon agency expertise or the presence of internal agency review, which factors will often prove more influential in respect to outcome than will the applicable standard of review.

These features of review underline the importance of the fact that, when a Federal Circuit judge reviews PTO fact-finding, he or she often will examine that finding through the lens of patent-related experience — and properly so, for the Federal Circuit is a specialized court. That comparative expertise, by enabling the Circuit better to understand the basis for the PTO’s finding of fact, may play a more important role in assuring proper review than would a theoretically somewhat stricter standard.

Moreover, if the Circuit means to suggest that a change of standard could somehow immunize the PTO’s fact-related "reasoning” from review, 142 F. 3d, at 1449-1450, we disagree. A reviewing court reviews an agency’s reasoning to determine whether it is “arbitrary” or “capricious,” or, if bound up with a record-based factual conclusion, to determine whether it is supported by “substantial evidence.” E. g., SEC v. Chenery Corp., 318 U. S. 80, 89-93 (1943).

Second, the Circuit and its supporting amici believe that a change to APA review standards will create an anomaly. An applicant denied a patent can seek review either directly in the Federal Circuit, see 35 U. S. C. § 141, or indirectly by first obtaining direct review in federal district court, see § 145. The first path will now bring about Federal Circuit court/agency review; the second path might well lead to Federal Circuit court/court review, for the Circuit now reviews federal district court factfinding using a “clearly erroneous” standard. Gould v. Quigg, 822 F. 2d 1074, 1077 (1987). The result, the Circuit claims, is that the outcome may turn upon which path a disappointed applicant takes; and it fears that those applicants will often take the more complicated, time-consuming indirect path in order to obtain stricter judicial review of the PTO’s determination.

We are not convinced, however, that the presence of the two paths creates a significant anomaly. The second path permits the disappointed applicant to present to the court evidence that the applicant did not present to the PTO. Ibid. The presence of such new or different evidence makes a factfinder of the district judge. And nonexpert judicial factfinding calls for the court/court standard of review. We concede that an anomaly might exist insofar as the district judge does no more than review PTO factfinding, but nothing in this opinion prevents the Federal Circuit from adjusting related review standards where necessary. Cf. Fregeau v. Mossingkojf, 776 F. 2d 1034, 1038 (CA Fed. 1985) (harmonizing review standards).

Finally, the Circuit reasons that its stricter court/court review will produce better agency factfinding. It says that the standard encourages the creation of "administrative records that more fully describe the metes and bounds of the patent grant” and “help avoid situations where board fact finding on matters such as anticipation or the factual inquiries underlying obviousness become virtually unreviewable.” 142 F. 3d, at 1458. Neither the Circuit nor its supporting amici, however, have explained convincingly why direct review of the PTO’s patent denials demands a stricter fact-related review standard than is applicable to other agencies. Congress has set forth the appropriate standard in the APA. For the reasons stated, we have not found circumstances that justify an exception.

For these reasons, the judgment of the Federal Circuit is reversed. We remand the ease for further proceedings consistent with this opinion.

So ordered.

APPENDIX TO OPINION OF THE COURT

Review of 89 Pre-APA CCPA Patent Cases Reciting “Clear” or “Manifest” Error Standard

Cases Referring to both Technical Complexity/Ageney Expertise and the Agreement (Disagreement) Within the Agency

Stern v. Schroeder, 17 C. C. P. A. 670, 674, 36 F. 2d 515, 517 (1929)

In re Ford, 17 C. C. P. A. 893, 894, 38 F. 2d 525, 526 (1930) In re Demarest, 17 C. C. P. A. 904, 906, 38 F. 2d 895, 896 (1930)

In re Wietzel, 17 C. C. P. A. 1079, 1082, 39 F. 2d 669, 671 (1930)

In re Anhaltzer, 18 C. C. P. A. 1181, 1184, 48 F. 2d 657, 658 (1931)

Dover v. Moody, 18 C. C. P. A. 1188, 1190, 48 P. 2d 388, 389 (1931)

In re Hornsey, 18 C. C. P. A. 1222, 1224, 48 F. 2d 911, 912 (1931)

Rowe v. Holtz, 19 C. C. P. A. 970, 974, 55 F. 2d 468, 470-471 (1932)

In re Fessenden, 19 C. C. P. A. 1048, 1050-1051, 56 F. 2d 669, 670 (1932)

Martin v. Friendly, 19 C. C. P. A. 1181, 1182-1183, 58 F. 2d 421 422 (1932)

In re Dubilier, 20 C. C. P. A. 809, 815, 62 F. 2d 374, 377 (1933)

In re Alden, 20 C. C. P. A. 1083, 1084-1085, 65 F. 2d 136, 137 (1933)

Farmer v. Pritchard, 20 C. C. P. A. 1096, 1101, 65 F. 2d 165, 168 (1933)

In re Pierce, 20 C. C. P. A. 1170, 1175, 65 F. 2d 271, 274 (1933)

Angell v. Morin, 21 C. C. P. A. 1018, 1024, 69 F. 2d 646, 649 (1934)

Daley v. Trube, 24 C. C. P. A. 964, 971, 88 F. 2d 308, 312 (1937)

Coast v. Dubbs, 24 C. C. P. A. 1023, 1031-1032, 88 F. 2d 734, 739 (1937)

Bryson v. Clarke, 25 C. C. P. A. 719, 721, 92 F. 2d 720, 722 (1937)

Brand v. Thomas, 25 C. C. P. A. 1053, 1055, 96 F. 2d 301, 302 (1938)

Creed v. Potts, 25 C. C. P. A. 1084, 1089, 96 F. 2d 317, 321 (1938)

In re Cassidy, 25 C. C. P. A. 1282, 1285, 97 F. 2d 93, 95 (1938)

Krebs v. Melicharek, 25 C. C. P. A. 1362, 1365-1366, 97 F. 2d 477, 479 (1938)

Parker v. Ballantine, 26 C. C. P. A. 799, 804, 101 F. 2d 220, 223 (1939) (disagreement)

Reed v. Edwards, 26 C. C. P A. 901, 904, 101 F. 2d 550, 552 (1939)

Bill v. Casler, 26 C. C. P. A. 930, 932, 102 F. 2d 219, 221 (1939)

Tears v. Robinson, 26 C. C. P A. 1391, 1392, 104 F. 2d 813, 814 (1939)

In re Bertsch, 27 C. C. P. A. 760, 763-764, 107 F. 2d 828, 831 (1939)

In re Wuertz, 27 C. C. P. A. 1039, 1046, 110 F. 2d 854, 857 (1940)

In re Kaplan, 27 C. C. P A. 1072, 1075, 110 F. 2d 670, 672 (1940)

Prahl v. Redman, 28 C. C. P A. 937, 940, 117 F. 2d 1018, 1021 (1941)

In re Bertsch, 30 C. C. P A. 813, 815-816, 132 F. 2d 1014, 1016 (1942)

In re Stacy, 30 C. C. P A. 972, 974, 135 F. 2d 232, 233 (1943)

Poulsen v. McDowell, 31 C. C. P. A. 1006, 1011, 142 F. 2d 267, 270 (1944)

Pinkerton v. Stahly, 32 C. C. P A. 723, 728, 144 F. 2d 881, 885 (1944)

Cases Referring to Technical Complexity/Agency Expertise

In re Engelhardt, 17 C. C. P. A. 1244, 1251, 40 F. 2d 760, 764 (1930)

In re McDonald, 18 C. C. P A. 1099, 1102, 47 F. 2d 802, 804 (1931)

In re Hermans, 18 C. C. P. A. 1211, 1212, 48 F. 2d 386, 387 (1931)

In re Batcher, 19 C. C. P A. 1275, 1278, 59 F. 2d 461, 463 (1932)

In re Carlton, 27 C. C. P A. 1102, 1105, 111 F. 2d 190, 192 (1940)

Farnsworth v. Brown, 29 C. C. P. A. 740, 749, 124 F. 2d 208, 214 (1941)

In re Ubbelhode, 29 C. C. P. A. 1042, 1046, 128 F. 2d 458, 456 (1942)

In re Cohen, 30 C. C. P. A. 876, 880, 183 F. 2d 924, 926 (1943)

In re Ruzicka, 32 C. C. P. A. 1165, 1169, 150 F. 2d 550, 553 (1945)

In re Allbright, 33 C. C. P. A. 760, 764, 152 F. 2d 984, 986 (1946)

Cases Referring to Agreement Within the Agency

Beidler v. Caps, 17 C. C. P. A. 703, 705, 36 F. 2d 122, 123 (1929)

Stern v. Schroeder, 17 C. C. P. A. 690, 696-697, 36 F. 2d 518, 521-522 (1929)

Janette v. Folds, 17 C. C. P. A. 879, 881, 38 F. 2d 361, 362 (1930)

In re Moulton, 17 C. C. P. A. 891, 892, 38 F. 2d 359, 360 (1930)

In re Banner, 17 C. C. P. A. 1086, 1090, 39 F. 2d 690, 692 (1930)

In re Walter, 17 C. C. P. A. 982, 983, 39 F. 2d 724 (1930)

Pengilly v. Copeland, 17 C. C. P. A. 1143, 1145, 40 F. 2d 995, 996 (1930)

Thompson v. Pettis, 18 C. C. P. A. 755, 757, 44 F. 2d 420, 421 (1930)

In re Kochendorfer, 18 C. C. P. A. 761, 763, 44 F. 2d 418, 419 (1930)

In re Dickerman, 18 C. C. P. A. 766, 768, 44 F. 2d 876, 877 (1930)

Bennett v. Fitzgerald, 18 C. C. P. A. 1201, 1202, 48 F. 2d 917, 918 (1931)

In re Doherty, 18 C. C. P. A. 1278, 1280, 48 F. 2d 952, 953 (1931)

In re Murray, 19 C. C. P. A. 766, 767-768, 53 F. 2d 540, 541 (1931)

In re Breer, 19 C. C. P. A. 929, 931, 55 F. 2d 485, 486 (1932)

Robbins v. Steinbart, 19 C. C. P. A. 1069, 1072, 57 F. 2d 378, 379 (1932)

Henry v. Harris, 19 C. C. P. A. 1092, 1096-1097, 56 F. 2d 864, 866 (1932)

Fageol v. Midboe, 19 C. C. P. A. 1117, 1122, 56 F. 2d 867, 870 (1932)

Gamble v. Church, 19 C. C. P. A. 1145, 1146, 57 F. 2d 761, 762 (1932)

Thompson v. Fawick, 20 C. C. P. A. 953, 956, 64 F. 2d 125, 127 (1933)

Evans v. Clocker, 20 C. C. P. A. 956, 960, 64 F. 2d 137, 139 (1933)

In re Bloch, 20 C. C. P. A. 1180, 1183, 65 F. 2d 268, 269 (1933)

In re Snyder, 21 C. C. P. A. 720, 722, 67 F. 2d 493, 495 (1933)

Osgood v. Ridderstrom, 21 C. C. P. A. 1176, 1182, 71 F. 2d 191, 195 (1934)

Urschel v. Crawford, 22 C. C. P. A. 727, 730, 73 F. 2d 510, 511 (1934)

Marine v. Wright, 22 C. C. P. A. 946, 948-949, 74 F. 2d 996, 997 (1935)

Berman v. Rondelle, 22 C. C. P. A. 1049, 1052, 75 F. 2d 845, 847 (1935)

Tomlin v. Dunlap, 24 C. C. P. A. 1108, 1114, 88 F. 2d 727, 731 (1937)

Lasker v. Kurowski, 24 C. C. P. A. 1253, 1256, 90 F. 2d 132, 134 (1937)

In re Taylor, 25 C. C. P. A. 709, 711, 92 F. 2d 705, 706 (1937)

In re Adamson, 25 C. C. E A. 726, 729-730, 92 F. 2d 717, 720 (1937)

Adams v. Stuller, 25 C. C. E A. 865, 870, 94 F. 2d 403, 406 (1938)

Ellis v. Maddox, 25 C. C. P. A. 1045, 1053, 96 F. 2d 308, 314 (1938)

Kauffman v. Etten, 25 C. C. P. A. 1127, 1134, 97 F. 2d 134, 139 (1938)

Kindelmann v. Morsbach, 25 C. C. P. A. 1344, 1349, 97 F. 2d 796, 799-800 (1938)

King v. Young, 26 C. C. P. A. 762, 771, 100 F. 2d 663, 670 (1938)

Meuer v. Schellenger, 26 C. C. P. A. 1430, 1434, 104 F. 2d 949, 952 (1939)

McBride v. Teeple, 27 C. C. P. A. 961, 972, 109 F. 2d 789, 797, cert. denied, 311 U. S. 649 (1940)

Vickery v. Barnhart, 28 C. C. P. A. 979, 982, 118 F. 2d 578, 581 (1941)

Shumaker v. Paulson, 30 C. C. P. A. 1136, 1138, 136 F. 2d 686, 688 (1943)

Paulson v. Hyland, 30 C. C. P. A. 1150, 1152, 136 F. 2d 695, 697 (1943)

Dreyer v. Haffcke, 30 C. C. P. A. 1278, 1280, 137 F. 2d 116, 117 (1943)

Cases Referring to Neither Technical Complexity/Agency Expertise nor Agreement Within the Agency

In re Schmidt, 26 C. C. P. A. 773, 777, 100 F. 2d 673, 676 (1938)

Hamer v. White, 31 C. C. P. A. 1186, 1189, 143 F. 2d 987, 990 (1944)

Kenyon v. Platt, 33 C. C. P. A. 748, 752, 152 F. 2d 1006, 1009 (1946)

Beall v. Ormsby, 33 C. C. P. A. 959, 967, 154 F. 2d 663, 668 (1946)

Chief Justice Rehnquist,

with whom Justice Kennedy and Justice Ginsburg join, dissenting.

The issue in this ease is whether, at the time of the enactment of the Administrative Procedure Act (APA or Act) over 50 years ago, judicial review of factfinding by the Patent and Trademark Office (PTO) under the “clearly erroneous” standard was an “additional requiremen[t].., recognized by law.” 5 U. S. C. § 559. It is undisputed that, until today’s decision, both the patent bench and the patent bar had concluded that the stricter “clearly erroneous” standard was indeed such a requirement placed upon the PTO. Agency factfinding was thus reviewed under this stricter standard; in my view, properly so, since the APA by its plain text was intended to bring some uniformity to judicial review of agencies by raising the minimum standards of review and not by lowering those standards which existed at the time. Section 12 of the APA, which was ultimately codified as §559, provided that “Nothing in this Act shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law.” Pub. L. 404, 79th Cong., 60 Stat. 244. As a result, we must decide whether the “clearly erroneous” standard was indeed otherwise recognized by law in 1946.

This case therefore turns on whether the 89 or so cases identified by the Court can be read as establishing a requirement placed upon agencies that was more demanding than the uniform minimum standards created by the APA. In making this determination, I would defer, not to agencies in general as the Court does today, but to the Court of Appeals for the Federal Circuit, the specialized Article III court charged with review of patent appeals. In this case the unanimous en bane Federal Circuit and the patent bar both agree that these cases recognized the “clearly erroneous” standard as an “additional requirement” placed on the PTO beyond the APA’s minimum procedures. I see no reason to reject their sensible and plausible resolution of the issue.

Nor do I agree with the Court, ante, at 154-155, that either the plain language of § 559 or the original § 12 impose any sort of “clear statement rule” on the common law. Seetion 12 of the APA expressly stated that requirements which predated the APA and were “otherwise recognized by law” were unaffected by the Act. If Congress had meant “otherwise recognized by law” to mean “clearly recognized by law,” it certainly could have said so, but did not I also reject the notion that § 559’s separate textual requirement that subsequent statutes superseding or modifying the APA must do so “expressly,” 5 U. S. C. § 559, should be read to impose a nontextual clear statement rule for the antecedent common-law requirements that the APA supplemented.. There is no tension whatsoever between the goals of preserving more rigorous common-law requirements at the time of enactment and ensuring that future statutes would not repeal by implication the APA’s uniform supplementary procedures.

I therefore dissent for the reasons given by the Court of Appeals.

      It appears that even the PTO acquiesced in this interpretation for almost 50 years after the enactment of the APA. See Brief for Pharmaceutical Research and Manufacturers of America as Amicus Curiae 7, and n. 13 (the PTO first argued for the applicability of the APA’s standards of review to its patentability factfinding before the Federal Circuit in 1995).


author: Justice Stevens Chief Justice Rehnquist, Justice Thomas,

text:
    GREATER NEW ORLEANS BROADCASTING ASSOCIATION, INC., et al. v. UNITED STATES et al.
    No. 98-387.
    Argued April 27, 1999 —
    Decided June 14, 1999

      Stevens, J., delivered the opinion of the Court, in which Rehn-qtjist, C. J., and O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnqüist, C. J., filed a concurring opinion, post, p. 196. Thomas, J., filed an opinion concurring in the judgment, post, p. 197.

      Bruce J. Ennis, Jr., argued the cause for petitioners. With him on the briefs were Ashton R. Hardy, Nory Miller, and Donald B. Verrilli, Jr.

      Deputy Solicitor General Underwood argued the cause for respondents. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, Matthew D. Roberts, Anthony J. Steinmeyer, and Christopher J. Wright.

      Briefs of amici curiae urging reversal were filed for the American Advertising Federation by Richard, E. Wiley and Daniel E. Troy; for the American Gaming Association by John G. Roberts, Jr., David G. Leitch, and Frank J. Fahrenkopf, Jr.; for the Association of National Advertisers, Inc., by John J. Walsh, Steven G. Brody, and Gilbert H. Weil; for the Institute for Justice by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the National Association of Broadcasters et al. by P. Cameron DeVore, Gregory J. Kopta, and Jack N. Goodman; and for the Washington Legal Foundation by David H. Remes, Patricia A. Barald, Daniel J. Popeo, and Richard A. Samp.

        Gerald S. Rourke filed a brief for Valley Broadcasting Co. et al. as amici curiae.

   Justice Stevens

delivered the opinion of the Court.

Federal law prohibits some, but by no means all, broadcast advertising of lotteries and casino gambling. In United States v. Edge Broadcasting Co., 509 U. S. 418 (1993), we upheld the constitutionality of 18 U. S. C. § 1304 as applied to broadcast advertising of Virginia’s lottery by a radio station located in North Carolina, where no such lottery was authorized. Today we hold that § 1304 may not be applied to advertisements of private casino gambling that are broadcast by radio or television stations located in Louisiana, where such gambling is legal.

I

Through most of the 19th and the first half of the 20th centuries, Congress adhered to a policy that not only discouraged the operation of lotteries and similar schemes, but forbade the dissemination of information concerning such enterprises by use of the mails, even when the lottery in question was chartered by a state legislature. Consistent with this Court’s earlier view that commercial advertising was unprotected by the First Amendment, see Valentine v. Chrestensen, 316 U. S. 52, 54 (1942), we found that the notion that “lotteries . . . are supposed to have a demoralizing influence upon the people” provided sufficient justification for excluding circulars concerning such enterprises from the federal postal system, Ex parte Jackson, 96 U. S. 727, 736-787 (1878). We likewise deferred to congressional judgment in upholding the similar exclusion for newspapers that contained either lottery advertisements or prize lists. In re Rapier, 143 U. S. 110, 134-135 (1892); see generally Edge, 509 U. S., at 421-422; Lottery Case, 188 U. S. 321 (1903). The current versions of these early antilottery statutes are now codified at 18 U. S. C. §§ 1301-1303.

Congress extended its restrictions on lottery-related information to broadcasting as communications technology made that practice both possible and profitable. It enacted the statute at issue in this ease as §316 of the Communications Act of 1934, 48 Stat. 1088. Now codified at 18 U. S. C. § 1304 (“Broadcasting lottery information”), the statute prohibits radio and television broadcasting, by any station for which a license is required, 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.”

The statute provides that each day’s prohibited broadcasting constitutes a separate offense punishable by a fine, imprisonment for not more than one year, or both. Ibid. Although § 1304 is a criminal statute, the Solicitor General informs us that, in practice, the provision traditionally has been enforced by the Federal Communications Commission (FCC), which imposes administrative sanctions on radio and telé-vision licensees for violations of the agency’s implementing regulation. See 47 CFR § 73.1211 (1998); Brief for Respondents 3. Petitioners now concede that the broadcast ban in § 1304 and the FCC’s regulation encompasses advertising for privately owned casinos — a concession supported by the broad language of the statute, our precedent, and the FCC’s sound interpretation. See FCC v. American Broadcasting Co., 347 U. S. 284, 290-291, and n. 8 (1954).

During the second half of this century, Congress dramatically narrowed the scope of the broadcast prohibition in § 1304. The first inroad was minor: In 1950, certain not-for-profit fishing contests were exempted as “innocent pastimes ... far removed from the reprehensible type of gambling activity which it was paramount in the congressional mind to forbid.” S. Rep. No. 2243, 81st Cong., 2d Sess., 2 (1950); see Act of Aug. 16, 1950, ch. 722, 64 Stat. 451, 18 U.S.C. § 1305.

Subsequent exemptions were more substantial. Responding to the growing popularity of state-run lotteries, in 1975 Congress enacted the provision that gave rise to our decision in Edge. 509 U. S., at 422-423; Act of Jan. 2, 1975, 88 Stat. 1916, 18 U.S.C. §1307; see also § 1953(b)(4). With subsequent modifications, that amendment now exempts advertisements of state-conducted lotteries from the nationwide postal restrictions in §§ 1301 and 1302, and from the broadcast restriction in § 1304, when “broadcast by a radio or television station licensed to a location in ... a State which conducts such a lottery.” § 1307(a)(1)(B); see also §§ 1307(a)(1)(A), (b)(1). The § 1304 broadcast restriction remained in place, however, for stations licensed in States that do not conduct lotteries. In Edge, we held that this remaining restriction on broadcasts from nonlottery States, such as North Carolina, supported the “laws against gambling” in those jurisdictions and properly advanced the “congressional policy of balancing the interests of lottery and nonlottery States.” 509 U. S., at 428.

In 1988, Congress enacted two additional statutes that significantly curtailed the coverage of § 1304. First, the Indian Gaming Regulatory Act (IGRA), 102 Stat. 2467, 25 U. S. C. §2701 et seq., authorized Native American tribes to conduct various forms of gambling — including casino gambling — pursuant to tribal-state compacts if the State permits such gambling “for any purpose by any person, organization, or entity.” § 2710(d)(1)(B). The IGRA also exempted “any gaming conducted by an Indian tribe pursuant to” the Act from both the postal and transportation restrictions in 18 U. S. C. §§ 1301-1302, and the broadcast restriction in § 1304. 25 U. S. C. §2720. Second, the Charity Games Advertising Clarification Act of 1988, 18 U. S. C. § 1307(a)(2), extended the exemption from §§1301-1304 for state-run lotteries to include any other lottery, gift enterprise, or similar scheme— not prohibited by the law of the State in which it operates — when conducted by: (i) any governmental organization; (ii) any not-for-profit organization; or (iii) a commercial organization as a promotional activity “clearly occasional and ancillary to the primary business of that organization.” There is no dispute that the exemption in § 1307(a)(2) applies to casinos conducted by state and local governments. And, unlike the 1975 broadcast exemption for advertisements of and information concerning state-conducted lotteries, the exemptions in both of these 1988 statutes are not geographically limited; they shield messages from § 1304’s reach in States that do not authorize such gambling as well as those that do.

A separate statute, the 1992 Professional and Amateur Sports Protection Act, 28 U. S. C. § 3701 et seq., proscribes most sports betting and advertising thereof. Section 3702 makes it unlawful for a State or tribe “to sponsor, operate, advertise, promote, license, or authorize by law or compact” — or for a person “to sponsor, operate, advertise, or promote, pursuant to the law or compact” of a State or tribe — any lottery or gambling scheme based directly or indirectly on competitive games in which amateur or professional athletes participate. However, the Act also includes a variety of exemptions, some with obscured congressional purposes: (i) gambling schemes conducted by States or other governmental entities at any time between January 1,1976, and August 31, 1990; (ii) gambling schemes authorized by statutes in effect on October 2, 1991; (iii) gambling “conducted exclusively in casinos” located in certain municipalities if the schemes were authorized within 1 year of the effective date of the Act and, for “commercial casino gaming scheme[s],” that had been in operation for the preceding 10 years pursuant to a state constitutional provision and comprehensive state regulation applicable to that municipality; and (iv) gambling on parimutuel animal racing or jai-alai games. § 3704(a); see also 18 U. S. C. §§ 1953(b)(1) — (3) (regarding interstate transportation of wagering paraphernalia). These exemptions make the scope of §3702’s advertising prohibition somewhat unclear, but the prohibition is not limited to broadcast media and does not depend on the location of a broadcast station or other disseminator of promotional materials.

Thus, unlike the uniform federal antigambling policy that prevailed in 1934 when 18 U. S. C. § 1304 was enacted, federal statutes now accommodate both progambling and anti-gambling segments of the national polity.

h — l h*H

Petitioners are an association of Louisiana broadcasters and its members who operate FCC-licensed radio and television stations in the New Orleans metropolitan area. But for the threat of sanctions pursuant to § 1304 and the FCC’s companion regulation, petitioners would broadcast promotional advertisements for gaming available at private, for-profit casinos that are lawful and regulated in both Louisiana and neighboring Mississippi. According to an FCC official, however, “[ujnder appropriate conditions, some broadcast signals from Louisiana broadcasting stations may be heard in neighboring states including Texas and Arkansas,” 3 Record 628, where private casino gambling is unlawful.

Petitioners brought this action against the United States and the FCC in the District Court for the Eastern District of Louisiana, praying for a declaration that § 1304 and the FCC’s regulation violate the First Amendment as applied to them, and for an injunction preventing enforcement of the statute and the rule against them. After noting that all parties agreed that the case should be decided on their cross-motions for summary judgment, the District Court ruled in favor of the Government. 866 F. Supp. 975, 976 (1994). The court applied the standard for assessing commercial speech restrictions set out in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 566 (1980), and concluded that the restrictions at issue adequately advanced the Government’s “substantial interest (1) in protecting the interest of nonlottery states and (2) in reducing participation in gambling and thereby minimizing the social costs associated therewith.” 866 F. Supp., at 979. The court pointed out that federal law does not prohibit the broadcast of all information about casinos, such as advertising that promotes a casino’s amenities rather than its “gaming aspects,” and observed that advertising for state-authorized casinos in Louisiana and Mississippi was actually “abundant.” Id., at 980.

A divided panel of the Court of Appeals for the Fifth Circuit agreed with the District Court’s application of Central Hudson, and affirmed the grant of summary judgment to the Government. 69 F. 3d 1296, 1298 (1995). The panel majority’s description of the asserted governmental interests, although more specific, was essentially the same as the District Court’s:

“First, section 1304 serves the interest of assisting states that restrict gambling by regulating interstate activities such as broadcasting that are beyond the powers of the individual states to regulate. The second asserted governmental interest lies in discouraging public participation in commercial gambling, thereby minimizing the wide variety of social ills that have historically been associated with such activities.” Id., at 1299.

The majority relied heavily on our decision in Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), see 69 F. 3d, at 1300-1302, and endorsed the theory that, because gambling is in a category of “vice activity” that can be banned altogether, “advertising of gambling can lay no greater claim on constitutional protection than the underlying activity,” id., at 1302. In dissent, Chief Judge Politz contended that the many exceptions to the original prohibition in § 1304 — and that section’s conflict with the policies of States that had legalized gambling — precluded justification of the restriction by either an interest in supporting anticasino state policies or “an independent federal interest in discouraging public participation in commercial gambling.” Id., at 1303-1304.

While the broadcasters’ petition for certiorari was pending in this Court, we decided 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996). Because the opinions in that case concluded that our precedent both preceding and following Posadas had applied the Central Hudson test more strictly, 517 U. S., at 509-510 (opinion of Stevens, J.); id., at 531-532 (O’Connor, J., concurring in judgment) — and because we had rejected the argument that the power to restrict speech about certain socially harmful activities was as broad as the power to prohibit such conduct, see id., at 513-514 (opinion of Stevens, J.); see also Rubin v. Coors Brewing Co., 514 U. S. 476, 482-483, n. 2 (1995) — we granted the broadcasters’ petition, vacated the judgment of the Court of Appeals, and remanded the ease for further consideration. 519 U. S. 801 (1996).

On remand, the Fifth Circuit majority adhered to its prior conclusion. 149 F. 3d 334 (1998). The majority recognized that at least part of the Central Hudson inquiry had “become a tougher standard for the state to satisfy,” 149 F. 3d, at 338, but held that § 1304’s restriction on speech sufficiently advanced the asserted, governmental interests and was not “broader than necessary to control participation in casino gambling,” id., at 340. Because the Court of Appeals for the Ninth Circuit reached a contrary conclusion in Valley Broadcasting Co. v. United States, 107 F. 3d 1328, cert. denied, 522 U. S. 1115 (1998), as did a Federal District Court in Players Int'l Inc. v. United States, 988 F. Supp. 497 (NJ 1997), we again granted the broadcasters’ petition for certiorari. 525 U. S. 1097 (1999). We now reverse.

III

In a number of cases involving restrictions on speech that is “commercial” in nature, we have employed Central Hudsons four-part test to resolve First Amendment challenges:

“At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” 447 U. S., at 566.

In this analysis, the Government bears the burden of identifying a substantial interest and justifying the challenged restriction. Edenfield v. Fane, 507 U. S. 761, 770 (1993); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 71, and n. 20 (1983).

The four parts of the Central Hudson test are not entirely discrete. All are important and, to a certain extent, interrelated: Each raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three. Partly because of these intricacies, petitioners as well as certain judges, scholars, and amici curiae have advocated repudiation of the Central Hudson standard and implementation of a more straightforward and stringent test for assessing the validity of governmental restrictions on commercial speech. As the opinions in kk Liquormart demonstrate, reasonable judges may disagree about the merits of such proposals. It is, however, an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a ease can be fully resolved on a narrower ground. See United States v. Raines, 362 U. S. 17, 21 (1960). In this ease, there is no need to break new ground. Central Hudson, as applied in our more recent commercial speech eases, provides an adequate basis for decision.

IV

All parties to this ease agree that the messages petitioners wish to broadcast constitute commercial speech, and that these broadcasts would satisfy the first part of the Central Hudson test: Their content is not misleading and concerns lawful activities, i. e., private casino gambling in Louisiana and Mississippi. As well, the proposed commercial messages would convey information — whether taken favorably or unfavorably by the audience — about an activity that is the subject of intense public debate in many communities. In addition, petitioners’ broadcasts presumably would disseminate accurate information as to the operation of market competitors, such as pay-out ratios, which can benefit listeners by informing their consumption choices and fostering price competition. Thus, even if the broadcasters’ interest in conveying these messages is entirely pecuniary, the interests of, and benefit to, the audience may be broader. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 764-765 (1976); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 96-97 (1977); Bigelow v. Virginia, 421 U. S. 809, 822 (1975).

The second part of the Central Hudson test asks whether the asserted governmental interest served by the speech restriction is substantial. The Solicitor General identifies two such interests: (1) reducing the social costs associated with “gambling” or “casino gambling,” and (2) assisting States that “restrict gambling” or “prohibit casino gambling” within their own borders. Underlying Congress’ statutory scheme, the Solicitor General contends, is the judgment that gambling contributes to corruption and organized crime; underwrites bribery, narcotics trafficking, and other illegal Conduct; imposes a regressive tax on the poor; and “offers a false but sometimes irresistible hope of financial advancement.” Brief for Respondents 15-16. With respect to casino gambling, the Solicitor General states that many of the associated social costs stem from “pathological” or “compulsive” gambling by approximately 3 million Americans, whose behavior is primarily associated with “continuous play” games, such as slot machines. He also observes that compulsive gambling has grown along with the expansion of legalized gambling nationwide, leading to billions of dollars in economic costs; injury and loss to these gamblers as well as their families, communities, and government; and street, white-collar, and organized crime. Id., at 16-20.

We can accept the characterization of these two interests as “substantial,” but that conclusion is by no means self-evident. No one seriously doubts that the Federal Government may assert a legitimate and substantial interest in alleviating the societal ills recited above, or in assisting like-minded States to do the same. Cf. Edge, 509 U. S., at 428. But in the judgment of both the Congress and many state legislatures, the social costs that support the suppression of gambling are offset, and sometimes outweighed, by countervailing policy considerations, primarily in the form of economic benefits. Despite its awareness of the potential social costs, Congress has not only sanctioned casino gambling for Indian tribes through tribal-state compacts, but has enacted other statutes that reflect approval of state legislation that authorizes a host of public and private gambling activities. See, e. g., 18 U. S. C. §§ 1307, 1953(b); 25 U. S. C. §§2701-2702, 2710(d); 28 U.S.C. § 3704(a). That Congress has generally exempted state-run lotteries and casinos from federal gambling legislation reflects a decision to defer to, and even promote, differing gambling policies in different States. Indeed, in Edge we identified the federal interest furthered by § 1304’s partial broadcast ban as the “congressional policy of balancing the interests of lottery and non-lottery States.” 509 U. S., at 428. Whatever its character in 1934 when § 1304 was adopted, the federal policy of discouraging gambling in general, and casino gambling in particular, is now decidedly equivocal.

Of course, it is not our function to weigh the policy arguments on either side of the nationwide debate over whether and to what extent casino and other forms of gambling should be legalized. Moreover, enacted congressional policy and “governmental interests” are not necessarily equivalents for purposes of commercial speech analysis. See Bolger, 463 U. S., at 70-71. But we cannot ignore Congress’ unwillingness to adopt a single national policy that consistently endorses either interest asserted by the Solicitor General. See Edenfield, 507 U. S., at 768; 44 Liquormart, 517 U. S., at 531 (O’Connor, J., concurring in judgment). Even though the Government has identified substantial interests, when we consider both their quality and the information sought to be suppressed, the crosscurrents in the scope and application of § 1304 become more difficult for the Government to defend.

V

The third part of the Central Hudson test asks whether the speech restriction directly and materially advances the asserted governmental interest. “This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, 507 U. S., at 770-771. Consequently, “the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose.” Central Hudson, 447 U. S., at 564. We have observed that “this requirement is critical; otherwise, ‘a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.’ ” Rubin, 514 U. S., at 487, quoting Edenfield, 507 U. S., at 771.

The fourth part of the test complements the direct-advancement inquiry of the third, asking whether the speeeh restriction is not more extensive than necessary to serve the interests that support it. The Government is not required to employ the least restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged regulation to the asserted interest — “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Fox, 492 U. S., at 480 (internal quotation marks omitted); see 44 Liquormart, 517 U. S., at 529, 581 (O’Connor, J., concurring in judgment). On the whole, then, the challenged regulation should indicate that its proponent “ ‘carefully calculated’ the costs and benefits associated with the burden on speech imposed by its prohibition.” Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993), quoting Fox, 492 U. S., at 480.

As applied to petitioners’ case, § 1304 cannot satisfy these standards. With regard to the first asserted interest— alleviating the social costs of casino gambling by limiting demand — the Government contends that its broadcasting restrictions directly advance that interest because “promotional” broadcast advertising concerning casino gambling increases demand for such gambling, which in turn increases the amount of casino gambling that produces those social costs. Additionally, the Government believes that compulsive gamblers are especially susceptible to the pervasiveness and potency of broadcast advertising. Brief for Respondents 33-36. Assuming the accuracy of this causal chain, it does not necessarily follow that the Government’s speech ban has directly and materially furthered the asserted interest. While it is no doubt fair to assume that more advertising would have some impact on overall demand for gambling, it is also reasonable to assume that much of that advertising would merely channel gamblers to one casino rather than another. More important, any measure of the effectiveness of the Government’s attempt to minimize the social costs of gambling cannot ignore Congress’ simultaneous encouragement of tribal casino gambling, which may well be growing at a rate exceeding any increase in gambling or compulsive gambling that private casino advertising could produce. See n. 5, supra. And, as the Court of Appeals recognized, the Government fails to “connect casino gambling and compulsive gambling with broadcast advertising for casinos” — let alone broadcast advertising for non-Indian commercial casinos. 149 F. 3d, at 339.

We need not resolve the question whether any lack of evidence in the record fails to satisfy the standard of proof under Central Hudson, however, because the flaw in the Government’s ease is more fundamental: The operation of § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it. See Rubin, 514 U. S., at 488. Under current law, a broadcaster may not carry advertising about privately operated commercial casino gambling, regardless of the location of the station or the casino. 18 U. S. C. § 1304; 47 CFR § 73.1211(a) (1998). On the other hand, advertisements for tribal casino gambling authorized by state compacts — whether operated by the tribe or by a private party pursuant to a management contract — are subject to no such broadcast ban, even if the broadcaster is located in, or broadcasts to, a jurisdiction with the strictest of antigambling policies. 25 U. S. C. § 2720. Government-operated, nonprofit, and “occasional and ancillary” commercial casinos are likewise exempt. 18 U. S. C. § 1307(a)(2).

The FCC’s interpretation and application of §§1304 and 1307 underscore the statute’s infirmity. Attempting to enforce the underlying purposes and policy of the statute, the FCC has permitted broadcasters to tempt viewers with claims of “Vegas-style excitement” at a commercial “casino,” if “casino” is part of the establishment’s proper name and the advertisement can be taken to refer to the casino’s amenities, rather than directly promote its gaming aspects. While we can hardly fault the FCC in view of the statute’s focus on the suppression of certain types of information, the agency’s practice is squarely at odds with the governmental interests asserted in this case.

From what we can gather, the Government is committed to prohibiting accurate product information, not commercial enticements of all kinds, and then only when conveyed over certain forms of media and for certain types of gambling— indeed, for only certain brands of casino gambling — and despite the fact that messages about the availability of such gambling are being conveyed over the airwaves by other speakers.

Even putting aside the broadcast exemptions for arguably distinguishable sorts of gambling that might also give rise to social costs about which the Federal Government is concerned — such as state lotteries and parimutuel betting on horse and dog races, § 1307(a)(1)(B); 28 U. S. C. § 3704(a)— the Government presents no convincing reason for pegging its speech ban to the identity of the owners or operators of the advertised casinos. The Government cites revenue needs of States and tribes that conduct casino gambling, and notes that net revenues generated by the tribal casinos are dedicated to the welfare of the tribes and their members. See 25 U. S. C. §§ 2710(b)(2)(B), (d)(1)(A)(ii), (2)(A). Yet the Government admits that tribal casinos offer precisely the same types of gambling as private casinos. Further, the Solicitor General does not maintain that government-operated casino gaming is any different, that States cannot derive revenue from taxing private casinos, or that any one class of casino operators is likely to advertise in a meaningfully distinct manner from the others. The Government’s suggestion that Indian casinos are too isolated to warrant attention is belied by a quick review of tribal geography and the Government’s own evidence regarding the financial success of tribal gaming. See n. 5, supra. If distance were determinative, Las Vegas might have remained a relatively small community, or simply disappeared like a desert mirage.

Ironically, the most significant difference identified by the Government between tribal and other classes of casino gambling is that the former is “heavily regulated.” Brief for Respondents 88. If such direct regulation provides a basis for believing that the social costs of gambling in tribal casinos are sufficiently mitigated to make their advertising tolerable, one would have thought that Congress might have at least experimented with comparable regulation before abridging the speech rights of federally unregulated casinos. While Congress’ failure to institute such direct regulation of private casino gambling does not necessarily compromise the constitutionality of §1304, it does undermine the asserted justifications for the restriction before us. See Rubin, 514 U. S., at 490-491. There surely are practical and nonspeeeh-related forms of regulation-including a prohibition or supervision of gambling on credit; limitations on the use of cash machines on casino premises; controls on admissions; pot or betting limits; location restrictions; and licensing requirements — that could more directly and effectively alleviate some of the social costs of casino gambling.

We reached a similar conclusion in Rubin. There, we considered the effect of conflicting federal policies on the Government’s claim that a speech restriction materially advanced its interest in preventing so-called “strength wars” among competing sellers of certain alcoholic beverages. We concluded that the effect of the challenged restriction on commercial speech had to be evaluated in the context of the entire regulatory seheme, rather than in isolation, and we invalidated the restriction based on the “overall irrationality of the Government’s regulatory scheme.” Id., at 488. As in this case, there was “little chance” that the speech restriction could have directly and materially advanced its aim, “while other provisions of the same Act directly undermine[d] and counteract[ed] its effects.” Id., at 489. Coupled with the availability of other regulatory options which could advance the asserted interests “in a manner less intrusive to [petitioners’] First Amendment rights,” we found that the Government could not satisfy the Central Hudson test. Id., at 490-491.

Given the special federal interest in protecting the welfare of Native Americans, see California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216-217 (1987), we recognize that there may be valid reasons for imposing commercial regulations on non-Indian businesses that differ from those imposed on tribal enterprises. It does not follow, however, that those differences also justify abridging non-Indians’ freedom of speech more severely than the freedom of their tribal competitors. For the power to prohibit or to regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct. 44 Liquormart, 517 U. S., at 509-511 (opinion of Stevens, J.); see id., at 531-532 (O’Connor, J., concurring in judgment); Rubin, 514 U. S., at 483, n. 2. It is well settled that the First Amendment mandates closer scrutiny of government restrictions on speech than of its regulation of commerce alone. Fox, 492 U. S., at 480. And to the extent that the purpose and operation of federal law distinguishes among information about tribal, governmental, and private casinos based on the identity of their owners or operators, the Government presents no sound reason why such lines bear any meaningful relationship to the particular interest asserted: minimizing casino gambling and its social costs by way of a (partial) broadcast ban. Discovery Network, 507 U. S., at 424, 428. Even under the degree of scrutiny that we have applied in commercial speech cases, decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment. Cf. Carey v. Brown, 447 U. S. 455, 465 (1980); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777, 784-785 (1978).

The second interest asserted by the Government — the derivative goal of “assisting” States with policies that disfavor private casinos — adds little to its case. We cannot see how this broadcast restraint, ambivalent as it is, might directly and adequately further any state interest in dampening consumer demand for casino gambling if it cannot achieve the same goal with respect to the similar federal interest.

Furthermore, even assuming that the state policies on which the Federal Government seeks to embellish are more coherent and pressing than their federal counterpart, § 1304 sacrifices an intolerable amount of truthful speech about lawful conduct when compared to all of the policies at stake and the social ills that one could reasonably hope such a ban to eliminate. The Government argues that petitioners’ speech about private casino gambling should be prohibited in Louisiana because, “under appropriate conditions,” 3 Record 628, citizens in neighboring States like Arkansas and Texas (which hosts tribal, but not private, commercial casino gambling) might hear it and make rash or costly decisions. To be sure, in order to achieve a broader objective such regulations may incidentally, even deliberately, restrict a certain amount of speech not thought to contribute significantly to the dangers with which the Government is concerned. See Fox, 492 U. S., at 480; cf. Edge, 509 U. S., at 429-430. But Congress’ choice here was neither a rough approximation of efficacy, nor a reasonable accommodation of competing state and private interests. Rather, the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all. Considering the manner in which § 1304 and its exceptions operate and the scope of the speech it proscribes, the Government’s second asserted interest provides no more convincing basis for upholding the regulation than the first.

VI

Accordingly, respondents cannot overcome the presumption that the speaker and the audience, not the Government, should be left to assess the value of accurate and nonmis-leading information about lawful conduct. Edenfield, 507 U. S., at 767. Had the Federal Government adopted a more coherent policy, or accommodated the rights of speakers in States that have legalized the underlying conduct, see Edge, 509 U. S., at 428, this might be a different case. But under current federal law, as applied to petitioners and the messages that they wish to convey, the broadcast prohibition in 18 U.S.C. §1304 and 47 CFR §73.1211 (1998) violates the First Amendment. The judgment of the Court of Appeals is therefore

Reversed.

Chief Justice Rehnquist,

concurring.

Title 18 U. S. C. § 1304 regulates broadcast advertising of lotteries and casino gambling. I agree with the Court that “[t]he operation of § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies,” ante, at 190, that it violates the First Amendment. But, as the Court observes:

“There surely are practical and nonspeeeh-related forms of regulation — including a prohibition or supervision of gambling on credit; limitations on the use of cash machines on casino premises; controls on admissions; pot or betting limits; location restrictions; and licensing requirements — that could more directly and effectively alleviate some of the social costs of casino gambling.” Ante, at 192.

Were Congress to undertake substantive regulation of the gambling industry, rather than simply the manner in which it may broadcast advertisements, “exemptions and inconsistencies” such as those in § 1304 might well prove constitutionally tolerable. “The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489 (1955) (citations omitted).

But when Congress regulates commercial speech, the Central Hudson test imposes a more demanding standard of review. I agree with the Court that that standard has not been met here, and I join its opinion.

Justice Thomas,

concurring in the judgment.

I continue to adhere to my view that “[i]n eases such as this, in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace,” the Central Hudson test should not be applied because “such an ‘interest’ is per se illegitimate and can no more justify regulation of ‘commercial speech’ than it can justify regulation of ‘noncommercial’ speech.” 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (opinion concurring in part and concurring in judgment). Accordingly, I concur only in the judgment.

       See, e. g., Act of Mar. 2, 1895, 28 Stat. 963 (prohibiting the transportation in interstate or foreign commerce, and the mailing of, tickets and advertisements for lotteries and similar enterprises); Act of Mar. 2, 1827, §6, 4 Stat. 238 (restricting the participation of postmasters and assistant postmasters in the lottery business); Act of July 27, 1868, § 13, 15 Stat. 196 (prohibiting the mailing of any letters or circulars concerning lotteries or similar enterprises); Act of July 12, 1876, §2, 19 Stat. 90 (repealing an 1872 limitation of the mails prohibition to letters and circulars concerning "illegal” lotteries); Anti-Lottery Act of 1890, § 1, 26 Stat. 465 (extending the mails prohibition to newspapers containing advertisements or prize lists for lotteries or gift enterprises).

       See, e.g., La. Rev. Stat. Ann. §§27:2, 27:15B(1), 27:42-27:43, 27:44(4), 27:44(10)-27:44(12) (West 1999); Miss. Code Ann. §§75-76-3, 97-33-25 (1972); see also La. Rev. Stat. Ann. §§27:202B-27:202D, 27:205(4), 27:205(12)-27:205(14), 27:210B (West 1999).

       See, e. g., Pet. for Cert. 23; Brief for Petitioners 10; Reply Brief for Petitioners 18-20; 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 526-528 (1996) (Thomas, J., concurring); Kozinski & Banner, Who’s Afraid of Commercial Speech?, 76 Va. L. Rev. 627 (1990); Brief for Association of National Advertisers, Inc., as Amicus Curiae 3-4; Brief for American Advertising Federation as Amicus Curiae 2.

       Brief for Respondents 12, 15, 28. We will concentrate on the Government’s contentions as to “casino gambling”: They are the focus of the Government’s argument and are more closely linked to the speech regulation at issue, thereby providing a more likely basis for upholding § 1304 as applied to these broadcasters and their proposed messages.

       Some form of gambling is legal in nearly every State. Government Lodging 192. Thirty-seven States and the District of Columbia operate lotteries. Ibid.; National Gambling Impact Study Commission, Staff Report: Lotteries 1 (1999). As of 1997, commercial casino gambling existed in 11 States, see North American Gaming Report 1997, Int’l Gaming & Wagering Bus., July 1997, pp. S4-SS1, and at least 5 authorize state-sponsored video gambling, see Del. Code Ann., Tit. 29, §§ 4801, 480S(f)-(g), 4820 (1974 and Supp. 1997); Ore. Rev. Stat. §461.215 (1998); R. I. Gen. Laws §42-61.2-2(a) (1998); S. D. Const., Art. III, §25 (1999); S. D. Comp. Laws Ann. §§42-7A-4(4), (11A) (1991); W.Va. Code §29-22A-4 (1999). Also as of 1997, about half the States in the Union hosted Class III Indian gaming (which may encompass casino gambling), including Louisiana, Mississippi, and four other States that had private casinos. United States General Accounting Office, Casino Gaming Regulation: Roles of Five States and the National Indian Gaming Commission 4-6 (May 1998) (including Indian casino gaming in five States without approved compacts); cf. National Gambling Impact Study Commission, Staff Report: Native American Gaming 2 (1999) (hereinafter Native American Gaming) (noting that 14 States have on-reservation Indian casinos, and that those casinos are the only casinos in 8 States). One count by the Bureau of Indian Affairs tallied 60 tribes that advertise their casinos on television and radio. Government Lodging 408, 435-437 (3 App. in Player’s Int’l, Inc. v. United States, No. 98-5127 (CA3)). By the mid-1990’s, tribal casino-style gambling generated over $3 billion in gaming revenue — increasing its share to 18% of all casino gaming revenue, matching the total for the casinos in Atlantic City, New Jersey, and reaching about half the figure for Nevada’s casinos. See Native American Gaming 2; Government Lodging 407, 423-429.

       The Government cites several secondary sources and declarations that it put before the Federal District Court in New Jersey and, as an alternative to affirming the judgment below, requests a remand so that it may have another chance to build a record in the Fifth Circuit. Remand is inappropriate for several reasons. First, the Government had ample opportunity to enter the materials it thought relevant after we vacated the Fifth Circuit’s first ruling and remanded for reconsideration in light of UU Liquormart. Second, the Government’s evidence did not convince the New Jersey court that § 1304 could be constitutionally applied in circumstances similar to this case, see Players Int’l, Inc. v. United States, 988 F. Supp. 497, 502-508, 506-507 (1997), and most of the sources that the Government cited in the New Jersey litigation were also presented to the Fifth Circuit, see Supplemental Brief for Appellees in No. 94-30732 (CA5), pp. iv-v. Indeed, the Government presented sources to the Fifth Circuit not provided to the New Jersey court, and the Fifth Circuit relied on material that the Government had not proffered. In any event, as we shall explain, additional evidence to support the Government’s factual assertions in this Court cannot justify the scheme of speech restrictions currently in effect.

       See, e. g., Letter to DR Partners, 8 FCC Red. 44 (1992); In re WTMJ, Inc., 8 FCC Red. 4354 (1993) (disapproving of the phrase “Vegas style games”); see also 2 Record 493, 497-498 (Mass Media Bureau letter to Forbes W. Blair, Apr. 10, 1987) (concluding that a proposed television commercial stating that the “odds for fun are high” at the sponsor’s establishment would be lawful); id., at 492, 500-501.

       As we stated in Edge: “[Applying the restriction to a broadcaster such as [respondent] directly advances the governmental interest in enforcing the restriction in nonlottery States, while not interfering with the policies of lottery States like Virginia.... [W]e judge the validity of the restriction in this case by the relation it bears to the general problem of accommodating the policies of both lottery and nonlottery States.” 509 U. S., at 429-430. The Government points out that Edge hypothesized that Congress “might have” held fast to a more consistent and broader anti-gambling policy by continuing to ban all radio or television advertisements for state-run lotteries, even by stations licensed in States with legalized lotteries. Id., at 428. That dictum does not support the validity of the speech restriction in this case. In that passage, we identified the actual federal interest at stake; we did not endorse any and all nationwide bans on nonmisleading broadcast advertising related to lotteries. As the Court explained, “Instead of favoring either the lottery or the nonlottery State, Congress opted to” accommodate the policies of both; and it was “[t]his congressional policy of balancing the interests of lottery and nonlottery States” that was “the substantial governmental interest that satisfie[d] Central Hudson.” Ibid.