Useful legal analogy re Internet versus other \"legal\" gambling
 

Hey iMEGA, here is a free bit of advice:

On Monday, a Federal court permanently enjoined a California law barring sale of violent video games to minors. Similar laws in 5 states have been struck down as unconstitutional, including Washington State I believe ... Why is this relevant ?

The California Court reasoned, in essence, that the there was no showing that the video game format was any more harmful in connection with violence than other formats for entertainment, such as movies or the Internet:

"[Judge] Whyte indicated that while the court was sympathetic to the state's agenda, the restriction cannot stand absent evidence that violent video games are "more harmful than violent television, moves, Internet sites or other speech-related exposures." California Gov. Arnold Schwarzenegger said Monday that his government will appeal the ruling.'

The analogy: That a State or the federal government allows gambling, remote or live in casinos could require an affirmative showing of harm unique to the Internet to support a ban on Internet gambling. Bluntly put, the Constitution protects speech, that the format is via the Internet does not automatically allow for Internet specific bans/regulation versus other forms of the same activity ... absent some pretty good support.

(This is the US Constitutional corollary to the WTO argument, the US gave up its right to discriminate against foreign service providers, then, by allowing US horseracing/lotterys to operate remotely, gave up its right specifically to discriminate against foreign gaming providers. Here, a State or the federal government cannot ban Internet speech while it allows the same speech to flourish in brick & mortar environs.

(I am not arguing that regulation or a ban is a per se Constitutional violation, just that there is no factual support to distinguish Internet gambling from lotteries, casinos, sports betting in person.)

iMEGA fails to make this argument to my knowledge, they really should.

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

You should send it to them. Don't assume that they will make this argument.

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

What would it take for someone to file an affadavit or amicus brief, or something to attach to the iMega suit so that the judge hears eveyr good argument we have? We only have to win once. Im not sure the exact legal term of what we can attach to iMega's case, and I guess it would take someone in that Circuit.

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

There was a prior court ruling that video games are "speech" protected by the First Amendment. You'd have to get creative to argue that online gambling is free speech, I think.

In addition, the Feds can claim that they need to restrict online gambling for anti-money laundering reasons, which gives them a stronger basis to pass that particular law.

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

"You'd have to get creative to argue that online gambling is free speech, I think."

How creative, really ?

1. Video games is a business, the company puts out software that someone pays to play on.

2. The publisher/provider of the software seems to enjoy speech protection.

3. Online poker sites publish/provide software that someone pays to play on.

4. Is there a valid "content" ban against real money play on the software ?? Under this line of cases, apparently not, because the same activity is allowed offline,by the government in brick & mortar venues.

5. Money laundering needs some evidentiary basis to stand up to scrutiny, otherwise why ban the activity rather than tailor a remedy for that possible ill. Cf ACLU v. Gonzales,

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

[ QUOTE ]
"You'd have to get creative to argue that online gambling is free speech, I think."

How creative, really ?

1. Video games is a business, the company puts out software that someone pays to play on.

2. The publisher/provider of the software seems to enjoy speech protection.

3. Online poker sites publish/provide software that someone pays to play on.

4. Is there a valid "content" ban against real money play on the software ?? Under this line of cases, apparently not, because the same activity is allowed offline,by the government in brick & mortar venues.

5. Money laundering needs some evidentiary basis to stand up to scrutiny, otherwise why ban the activity rather than tailor a remedy for that possible ill. Cf ACLU v. Gonzales,

[/ QUOTE ]

Sounds like there are a couple of ways you're trying to take this (neither of which will work).

One is the speech angle. Yeah, I get your argument; no court is going to find a ban on Internet gambling to be a ban on a form of speech as protected by the First Amendment. They're just not.

The other thing is an equal protection argument. Ie, that by banning internet gambling in some areas but not others, the government is discriminating against people who prefer to play on the banned games. This would be an equal protection claim, since you have one class of people (poker players, say) being treated from another (people who bet on horse races).

The problem is that this triggers rational basis scrutiny. The only things one needs to know about rational basis: 1) it needn't be rational and 2) it doesn't have to be the actual basis for the law. If the court can think of an argument that one could use that might make sense to someone somewhere, that's basically it.

I admire your efforts and your posts, but really, gambling isn't speech in the eyes of the courts, and it isn't going to be found to be.

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

I have read the pleadings of the iMEGA. I am not sure that they directly make this argument. However, I think that they imply it because one of their arguments is that the UIGEA is not narrowly tailored to satisfy a legitimate government objective and thus is too broad. In other words, what is rational about the UIGEA?
Isn't that the same basis for the judge's ruling in the case that you describe, Milton?

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

The problem is, there is no ban on playing poker, only for money.

Read the UIGEA closely, free play where tokens are awarded and only redeemable on the specific site are allowed.

There is no ban concerning Internet poker, only playing for real money as put forth by the DoJ and others.

obg


[ QUOTE ]
"You'd have to get creative to argue that online gambling is free speech, I think."

How creative, really ?

1. Video games is a business, the company puts out software that someone pays to play on.

2. The publisher/provider of the software seems to enjoy speech protection.

3. Online poker sites publish/provide software that someone pays to play on.

4. Is there a valid "content" ban against real money play on the software ?? Under this line of cases, apparently not, because the same activity is allowed offline,by the government in brick & mortar venues.

5. Money laundering needs some evidentiary basis to stand up to scrutiny, otherwise why ban the activity rather than tailor a remedy for that possible ill. Cf ACLU v. Gonzales,

[/ QUOTE ]

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

[ QUOTE ]
"You'd have to get creative to argue that online gambling is free speech, I think."

How creative, really ?

1. Video games is a business, the company puts out software that someone pays to play on.

2. The publisher/provider of the software seems to enjoy speech protection.

3. Online poker sites publish/provide software that someone pays to play on.

4. Is there a valid "content" ban against real money play on the software ?? Under this line of cases, apparently not, because the same activity is allowed offline,by the government in brick & mortar venues.

5. Money laundering needs some evidentiary basis to stand up to scrutiny, otherwise why ban the activity rather than tailor a remedy for that possible ill. Cf ACLU v. Gonzales,

[/ QUOTE ]

The more I think about it, the more it would be very, very simple for the government to argue that online poker presents substantially greater dangers of money laundering than B&M poker.

Re: Useful legal analogy re Internet versus other \"legal\" gambling
 

As others have pointed out, it has nothing to do with free speech and everything to do with money laundering.

I would agree with the government's current contention that online gambling makes laundering money easier than B&M gambling -- especially poker. I mean, come on, there's no better or faster way I know of to pay someone a big chunk of money than in a HUNL game. It only costs $3 per $10,000.

The problem with the government's argument is that it is circular:

1. Online gaming isn't regulated.
2. Because online gaming isn't monitored by the government, it is more likely to be used for money laundering (duh...).
3. Ergo, unregulated online gaming should be illegal.

It's a Catch 22. If online gaming was regulated (and taxed, of course, to pay for its regulation), then the government could insist on controls and measures to be implemented that fight money laundering and various other forms of financial fraud.

With the debt this country is racking up, it's no doubt Congress is looking at the financial boon that awaits a legalized online gaming industry in the United States. But they have to wrestle with phooey like "morality" first.

Why they think this is their responsibility, I have no idea...

Legalize. Regulate. Tax. Monitor. Control. Just leave the issues of "morality" and "cultural welfare" out of it.