UNITED STATES et al. v. NEW JERSEY STATE LOTTERY COMMISSION
No. 73-1471.
Argued November 20, 1974
Decided February 25, 1975
Deputy Solicitor General Wallace argued the cause for petitioners. On the brief were Solicitor General Bork, Assistant Attorney General Kauper, Louis F. Claiborne, Danny J. Boggs, and Joseph A. Marino.
Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for respondent. With him on the brief was William F. Hyland, Attorney General.
Briefs of amici curiae urging affirmance were filed by Robert K. Killian, Attorney General, and Barney Lapp and Daniel R. Schaefer, Assistant Attorneys General, for the State of Connecticut; by Warren B. Rudman, Attorney General, and David H. Souter, Deputy Attorney General, for the State of New Hampshire; by Louis Schwartz and Robert A. Woods for the Maryland Public Broadcasting Commission; by William J. Brown, Attorney General, and Stephen T. Parisi for the State of Ohio; by Verne Hodge, Attorney General, and Henry L. Feuerzeig, First Assistant Attorney General, for the Government of the Virgin Islands; by John B. Summers for the National Association of Broadcasters; and by Thomas B. Asher, Melvin L. Wulf, and Joel M. Gora for the American Civil Liberties Union.
Per Curiam.
This case involves a question regarding the applicability of 18 U. S. C. § 1304, which provides:
“Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting 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, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
Jersey Cape, a licensed radio station in New Jersey, sued for declaratory relief before the Federal Communications Commission arguing that § 1304 should not apply to the broadcast of the winning number in a lawful state-run lottery such as the one conducted by the State of New Jersey. See N. J. Stat. Ann. § 5:9-1 et seg. (1973). The Commission denied relief. 30 F. C. C. 2d 794 (1971). Upon a petition for rehearing, the New Jersey Lottery Commission was allowed to intervene and the FCC reaffirmed its denial. 36 F. C. C. 2d 93 (1972). The Lottery Commission petitioned for review in the Court of Appeals for the Third Circuit, 491 F. 2d 219 (1974), and the States of New Hampshire and Pennsylvania were granted permission to intervene as petitioners, id., at 221 n. 2. Sitting en banc, the Third Circuit unanimously reversed the FCC. We granted certiorari to resolve an apparent conflict between that decision and the decision by the Court of Appeals for the Second Circuit in New York State Broadcasters Assn. v. United States, 414 F. 2d 990 (1969).
Subsequent to the briefing and oral argument of the case in this Court, Congress passed and the President signed Pub. L. 93-583, 88 Stat. 1916, codified at 18 U. S. C. § 1307 (1970 ed., Supp. IV), which, in relevant part, provides:
“(a) The provisions of section . . . 1304 shall not apply to an advertisement, list of prizes, or information concerning a lottery conducted by a State acting under the authority of State law—
“(2) broadcast by a radio or television station licensed to a location in that State or an adjacent State which conducts such a lottery.”
The United States now urges us to dismiss this case as moot. It points out that the only relief requested was by a broadcaster located in New Jersey, a State that conducts an authorized lottery, and therefore the type of broadcast at issue is now allowed by statute. Intervenor, the State of New Hampshire disputes the suggestion of mootness. New Hampshire argues that the amendment to § 1304 does not grant it full relief. It is noted that Vermont, an adjacent State, does not conduct a state-authorized lottery. Thus, Vermont broadcasters will not be allowed, under § 1304, as modified by § 1307, to broadcast to New Hampshire listeners the winning numbers in the New Hampshire state lottery. New Hampshire apparently believes that this limitation constitutes a denial of First Amendment rights. This specific issue, however, was not briefed or argued in this Court.
In view of the enactment of § 1307, we deem it appropriate to remand to the Court of Appeals so that it may consider whether the case is now moot. Accordingly, the judgment below is vacated and the case is remanded.
It is so ordered.
The Chief Justice took no part in the consideration or decision of this case.
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