LAC VIEUX DESERT BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Plaintiff-Appellant, v. The MICHIGAN GAMING CONTROL BOARD; The City of Detroit; Atwater Entertainment Associates, L.L.C.; Greektown Casino, L.L.C., Defendants-Appellees, 276 F.3d 876

MARTIN, C.J., delivered the opinion of the court, in which MOORE, J., joined. O’MALLEY, D.J. (pp. 880-883), delivered a separate dissenting opinion. OPINION BOYCE F. MARTIN, JR., Chief Judge. Upon the legalization of gambling in Detroit, the City enacted an ordinance establishing how it would issue three licenses for the operation of its new casinos. Everyone interested in this opportunity should have been allowed to compete for it on the same terms. The ordinance instead incorporated an advantage for two companies that had been active in the movement to legalize the gambling in the first place.

Because Detroit based the advantage on that activity, and thereby penalized potential applicants who did not engage in it themselves, we hold that the ordinance in its current form is unconstitutional. I. Defendants Atwater Entertainment Associates and Greektown Casino organized petition drives to lift Michigan’s ban on off-reservation gambling. First, they helped place two initiatives on the Detroit city ballot that, in tandem, would authorize casinos within the city limits so long as voters statewide approved as well.

When the Detroit initiatives passed, Atwater and Greektown proceeded to organize the necessary statewide referendum, widely known as “Proposal E.” Proposal E also passed. As a result, casino gambling in Detroit became legal. Next, the Michigan state legislature passed the Michigan Gaming Control and Revenue Act, permitting the mayor of Detroit to choose three casino licensees. The city’s related ordinance, the subject of this case, governed the mayor’s selections. In numerous respects, the ordinance rewards Atwater and Greektown for their efforts during the state and local referenda campaigns.

For example, the ordinance includes a “statement of intent” declaring that “it is in the best interest of the City to provide a preference to those developers who took the initiative to facilitate the development of casino gaming in the City of Detroit by proposing a casino gaming proposal approved by the voters of the City, and who actively promoted and significantly supported the State initiative authorizing gaming.” Detroit City Code, § 18 — 13—l(i).

Another portion expressly prefers casino developers who, assuming they meet the other eligibility criteria, were “initiator[s] of a casino gaming proposal which was approved by the voters of this City prior to January 1, 1995; and ... made significant contributions to the development of gaming within the City by actively promoting and significantly supporting a state initiative authorizing gaming.” Detroit City Code, § 18-13-6(a)(2). Unsurprisingly, the mayor ultimately awarded Atwater and Greektown two of the three licenses, and both companies currently operate casinos in Detroit. II.

An Indian tribe that offers gambling on its Michigan reservation, the Lac Vieux Desert Band of Lake Superior Chippewa Indians, sued because of the obvious handicap it and all other prospective off-reservation operators faced in the Detroit licensing process. Essentially, the Lac Vieux claims that the ordinance’s preference provisions discriminate against it for having not taken Atwater and Greektown’s particular political position in the casino legalization debate.

According to the Lac Vieux, the ordinance’s licensing procedure thus violates the guarantees of the First Amendment as well as of the Fourteenth Amendment’s Equal Protection Clause. In granting Detroit

summary judgment on October 31, 1997, the district court held that the Lac Vieux lacked standing to bring its claims and that, even if the Lac Vieux did have standing, the claims lacked merit. The Lac Vieux appealed. We reversed the district court on all these issues, holding in particular that the district court’s exceptionally deferential review of the ordinance, considering only whether Detroit conceivably could have had any rational reason to enact it as it had, was inappropriate. See Lac Vieux Desert Band v.

Michigan Gaming Control Board, 172 F.3d 397, 409 (6th Cir.1999) {Lac Vieux I)• On remand, the district court purported to demand more of the ordinance but again sustained it. This second appeal followed. Our review of the district court’s decision is de novo. See United States v. Hill, 167 F.3d 1055, 1063 (6th Cir.1999). III. The doctrine of the law of the case requires us to honor the prior rulings of this Court in this litigation. Although we acknowledge that there are limited exceptions to this general principle, we are satisfied that none of them apply now. See United States v.

Todd, 920 F.2d 399, 403 (6th Cir.1990); Coal Resources, Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 767 (6th Cir.1989) (per curiam). The law of the case here is Lac Vieux I, and it establishes three propositions for our purposes: that the Lac Vieux has standing, that the preference provisions restrict First Amendment rights, and that, because the law permits that restriction only on the rarest of occasions, the ordinance is subject to the test commonly known as “strict scrutiny.” See Lac Vieux I, 172 F.3d at 407, 409-10. All Lac Vieux I leaves for us is the test’s administration.

We start by presuming that the ordinance is unconstitutional. Detroit can overcome that presumption only by proving that the ordinance is necessary to serve a compelling state interest and narrowly drawn to achieve that interest. See id. at 409 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). In our view, the City is unable to meet this heavy burden. With the preference, the ordinance is fatally unfair, and the casino licenses Detroit has issued to date are illegitimate.

Applying the analytic framework that Lac Vieux I sets forth, we first ask whether Detroit can demonstrate that the ordinance serves a compelling governmental interest. It can. We accept that the preference promotes the stability of Detroit’s political and tax systems, and these interests are indeed compelling under the First Amendment. See Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989); Gable v. Patton, 142 F.3d 940, 947 (6th Cir.1998) (quoting Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)); see also Minneapolis Star v.

Commissioner, 460 U.S. 575, 586, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (deeming government interest in raising revenue “critical” while deciding case on other grounds). Given that the ordinance serves these “compelling” interests in some measure, we next ask if the ordinance is necessary in order for the interests to be served at all. Likewise, with regard to the First Amendment problem that Lac Vieux I has already decided exists, we look at whether the ordinance is the least restrictive possible way of serving those interests. Here, Detroit’s arguments become unpersuasive.

Were we to agree that the ordinance is theoretically capable of ensuring for Detroit a stable political system and a sound tax system, the proper inquiry remains whether those things cannot exist without the current ordinance on the books.

Detroit stresses that the City’s electorate had rejected proposals that would have legalized casino gaming on five prior occasions, and projects that it would also have rejected this one without some indication of the likelihood that the casinos would be run by, as the district court described Atwater and Greektown, “Detroit businesses who had already invested in the City [and] who had demonstrated their commitment to the revitalization of the City.” However, this explanation goes to whether the preference was necessary to getting the ordinance passed, not to whether the preference is necessary to serve Detroit’s compelling interests.

In any event, the protections of the First Amendment cannot just be wished away, regardless of how much the government might like to do so. Furthermore, Detroit collapses the doctrinally accurate argument of whether the ordinance is necessary to serve its compelling interests into an argument that casinos themselves are necessary to do so. But Detroit has not demonstrated that its political and economic conditions are yet quite so dire that casinos present their last chance for salvation. Accordingly, the preference renders the ordinance invalid.

Absent the provision, we are confident that Detroit’s interests could be served without intruding upon the Lac Vieux’s First Amendment rights. The district court apparently decided otherwise because Detroit previously had rejected a means more restrictive than the preference, giving Atwater and Greektown an outright guarantee that casino licenses would be theirs. This was erroneous.

As the Lac Vieux has put it, the district court effectively turned this aspect of strict scrutiny “on its head,” failing to recognize that Detroit’s ordinance must do the least damage to the First Amendment, not just avoid doing the most damage. A less restrictive means of serving the interests Detroit has identified is simply leaving the preference out. By employing the preference, Detroit basically sought to end the high-stakes competition for two of the three Detroit casino licenses before it really began. This we cannot allow.

Barring governments from endorsing or punishing political activity, or the lack of it, is among the paramount functions of the First Amendment’s Free Speech Clause. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (“[EJxpression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’ ” (quoting in

part Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980))); see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (“One important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’ ” (quoting in part Pacific Gas & Electric Co. v. Public Utilities Comm’n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion))).

In this tradition, the decision of the district court is REVERSED and REMANDED for proceedings consistent with this opinion. . Under Lac Vieux I, the ordinance also implicates the Equal Protection Clause by employing a classification that affects “a constitutionally protected fundamental right, the right to freedom of speech,” Lac Vieux I, 172 F.3d at 410, but both the district court and the parties now treat this portion of the decision as merely an alternative basis for the application of strict scrutiny, see id. (citing Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988)).

We will do the same.