The already enjoined Child Porn Act versus the UIGE Act., analogous ?
That an internet site is subjected to risk of prosecution in State B or under a federal law adopting a violation of State B law, while the same content is legal in State A is the crux of the Constitutional issue, as applied in ACLU v Gonzales to the federal Child Porn Act, enforcement of which was enjoined permanently.
Unless I am missing some facts, I do not think the Child Porn Act made conduct in State A illegal. (That the same discredited Child Porn Act structure, though already enjoined, would be used in drafting the 2006 UIGE Act is not surprising, consider the sources of both.) (Someone with time to do so might want to review the ACLU facts to make sure I have it right, I do not have the case in front of me.)
Internet gaming is not exactly the same a publishing text and pictures, which enjoy a high protection under the 1st Amendment, but the case is full of alternatives the federal government COULD have used to protect its state interest short of subjecting site operators ro prosecution under State B claims for conduct legal in State A.
That the site is a business does not mean it is ineligible for 1st Amendment protection (albeit lesser scrutiny) and does mean that the Commerce Clause may protect the business's interest.
Some "legal" players would help the case posture immensely.
|