Relevant 1st Amend. case decided in Nevada last week ?

MiltonFriedman · #1 07-21-2007, 06:21 PM

A recent US District Court case struck down a ban on advertising brothels in Clark County and Washoe County. Briothels are legal in other Nevada Counties, but not in Clark or Washoe. (Las Vegas is in Clark County.) If anyone has a copy of the decision, by Judge Mahan last week, could they post a link ? (The Plainitffs included the ACLU and City Life, a sister subsidiary to the Las Vegas Review Journal.)

Apparently, even tho operating a brothel is illegal in Clark County, a Nye County brothel could still advertise there. This is analogous to Nevada casinos advertising out of State.

Why is this good ? ... (I would want to see the decision itself) However, it clearly fits in with the argument that a ban on internet gaming in some States, (and a Federal bootstrap thereof) would violate the right to conduct business in less restrictive States. In fact, an advetising ban, which would block advertising in the "Illegal" States would violate the business' right.

(Again, if anyone has the decision, a link would be appreciated.)

damaniac · #2 07-21-2007, 06:34 PM

I don't know why this would be that broad. It would seemingly protect advertising for internet gambling in states where it is banned (although I'd want to search Westlaw for some case law on this), but I don't know why this would apply to gaming itself. The gaming would almost certainly be considered commercial activity, not speech (someone's going to say: "But an argument could be made that..." No, sorry. The courts won't find that internet gambling is a form of speech. I don't care if you think it should be; it isn't in the court's eyes and that's whose opinion matters).

Again, I'd want to see the opinion too, but there is a substantative right to free speech, not so to commerce (not since Lochner died, anyway). And of course this a district court. So until an appellate court makes such a statement in a published case, it doesn't mean much in terms of precedent (though would be hopeful that other courts could find that way).

Bilgefisher · #3 07-21-2007, 08:21 PM

I'm not a lawyer, so pardon my confusion. Wouldn't a brothel and online gaming fall into the commerce category and have little to do with free speech? It seems the brothel case would open some doors for any other business. Advertising liquor in a dry county or in our case poker in a non gambling county. The only thing I wonder, isn't commerce laws within a state much different then commerce laws between states?

Sorry guys, gotta put it in laymen terms for us non-lawyer types.

renodoc · #4 07-21-2007, 10:40 PM

wow- when do the billboards go up? that will mess up traffic.

Legislurker · #5 07-21-2007, 11:46 PM

It could be awesome news in terms of fish recruitment. Unfettered television commercials for .com sites that can say legal on them if they are legal(or not illegal) anywhere. Im not Malthusian on the poker pie, but every commercial(or even a billboard) is more $ in my virtual pocket.

MiltonFriedman · #6 07-22-2007, 09:11 AM

"[T]here is a substantative right to free speech, not so to commerce "

There is clearly First Amendment protection for commercial speech. You are wrong on that point. (The problem is that government burdens imposed upon commercial speech are just not subject to as strict a standard of scrutiny.)

Russ Fox · #7 07-22-2007, 12:21 PM

There's lots of case law on what's legal as far as commercial speech. (Note: I'm not an attorney, but I used to be a consultant in the telecommunications industry, so I had to know this information.) The test used for deciding whether commercial speech is legal is the "Central Hudson Test" after Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980). (The case is here.)

There are two recent Supreme Court cases that looked at casino advertising. The first is Posadas de Puerto Rico Assoc. v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986). The second case is Greater New Orleans Broadcasting Association, Inc., et al. v. United States et al. In both cases the Supreme Court ruled that casinos can advertise where casino gambling is legal but cannot advertise where casino gambling is illegal. In the Greater New Orleans case, the court held that a New Orleans television station that could be watched in Texas can accept advertisements for casino gambling but a Texas station cannot.

As a practical matter this means that given the US government's position that all Internet gambling is illegal, and the fact that the FCC regulates all broadcast media in the US (except satellite communications, which are regulated by the FTC), no broadcast media station today will accept advertisements for a .com Internet site, and this will not be changing any time soon.

-- Russ Fox

damaniac · #8 07-22-2007, 01:48 PM

[ QUOTE ]
"[T]here is a substantative right to free speech, not so to commerce "

There is clearly First Amendment protection for commercial speech. You are wrong on that point. (The problem is that government burdens imposed upon commercial speech are just not subject to as strict a standard of scrutiny.)

[/ QUOTE ]

Sure, but running an internet gambling site is NOT commercial speech. Advertising it, yes, running it, no.

JPFisher55 · #9 07-22-2007, 02:38 PM

Actually the situation could be changing within the next year. The DOJ can state that all online gambling is illegal, but we will see what the judge in the iMEGA case rules. That case may take some time since I doubt that iMEGA will obtain their TRO. However, the judge could grant the final injunction requested in their original petition.

MiltonFriedman · #10 07-22-2007, 03:54 PM

Thanks for the Sup Ct. cases. My reasoning is as follows:

1. The basic premise is that online poker is not illegal everywhere in the US. Hypothetical State A does NOT outlaw it and there is no Federal law which outlaws it.

2. As with the Greater New Orleans casinos, an online site wants to advertise on the Internet to residents of State A.

3. As expected, the advertisements, meaning the online dot.com site offering downloadable clients, can be seen in State B.

Can the Greater New Orleans, and possibly the new Nevada case, would support an argument that the laws of State B cannot be relied upon by the Federal government to ban advertisment via the Internet by the online poker company ... so long as there is a State A where it is not illegal to play ?

A similar analogy would apply to prohibiting the depositing of money by State A residents. (In order to tailor the UIGE Act Regs to an appropriate constitutional scope, would they need to identify which States are A or B and carve out the A States ?)