Casinocity VS US Department Of Justice
Published: Friday, August 05, 2005 Online-Casinos.com
CASINO CITY VS DEPARTMENT OF JUSTICE
Latest arguments in freedom of speech case
The legal battle between online gambling publishing house Casino City and the US Department of Justice continued to attract attention this week as the former submitted its argument against the DoJ's latest contentions (see recent Online-Casinos.com & InfoPowa reports).
The battle started when Casino City took the government to court for a declaratory judgement on the DoJ's *advisories* to US advertising media that accepting online gambling ads could be contrary to the law. Many companies backed away from such advertising in moves that resulted in the loss of millions of dollars.
Casino City lost that first appearance, which involved the First Amendment to the US Constitution regarding freedom of speech, on the grounds that it had not been among those warned or in danger of prosecution by the DoJ action and therefore had no grounds for presenting a case.
The publisher immediately launched an appeal in the US Court of Appeals for the Fifth Circuit, the DoJ answered that appeal using the same "no standing" arguments as before, and now Casino City has responded in a final statement.
The document is a succinct point by point rebuttal of the DoJ argument and now goes before the Appeal Court for a decision.
CC makes the important point that its challenge is based on whether the US statutes are being correctly interpreted by the DoJ (that online gambling and accepting online gambling advertisements is illegal) and whether the threats that these will be applied were carried out in an unconstitutional manner.
In answer to the DoJ contention that it has no standing, Casino City claims that it is not necessary to allege that it has violated a statute. It asks the court to determine whether the DoJ has unconstitutionally abused its authority to stifle protected speech, and claims it is not necessary for a company to allege that it has broken the law in order to issue such a challenge.
The DoJ contention that more than a year had passed between the time the threatening letters were sent to the date litigation was launched is countered by CC's riposte that it is of no constitutional importance in the freedom of speech context that CC had not been specifically addressed by the DoJ letter, and that not a single prosecution had been launched against any advertiser.
CC claims that its First Amendment rights are ongoing and it has not waived those rights because of the time necessary to file an action, and it in any case disputes the DoJ timeframe.
As CC's document says: "It is particularly troublesome from a constitutional standpoint if the DoJ does not intend to effectuate prosecutions. If successful with this posture, the DoJ would be able to effectively immunize itself from judicial review of a course of conduct designed to stifle free speech. Such a course of action goes to the very core of the chilling doctrine."
Another area of disagreement is the DoJ claim that Congress has the power to prohibit advertising for illegal gambling, which CC counters with the statement that whilst this may be so, Congress has in fact not - it has only prohibited certain forms of gambling.
CC emphasises throughout that it is not challenging statutes - it is seeking judgement on the manner in which the DoJ is interpreting and applying them.
CC also takes issue with the manner in which the DoJ worded its warning letters, pointing out that the DoJ made no distinction between legal and illegal online gambling and pronounced all forms of online gambling to be illegal:
"Such a blanket posture regarding the legality of online gambling is erroneous. This court has held that online casino gambling is not prohibited by [the Wire Act]. . . . And there is an absence of case law applying [the Illegal Gambling Business Act and the Travel Act] to online gambling. . . Thus, the conclusion by the DoJ and by the district court that online gambling is per se illegal is overreaching to say the least.
"Such a posture ignores principles set forth by the U.S. Supreme Court, which has ruled in multi-jurisdictional First Amendment advertisement cases that an advertiser may not be prohibited form disseminating truthful information about an activity that is legal in another jurisdiction."
The company's brief concludes:
"To the extent that the DoJ criticizes Casino City for not presenting lesser restrictive means as alternatives to the district court, Casino City points out that the record in this case is not yet developed. Moreover, if there is any pertinent omission pertaining to this point, it is that the DOJ has failed to show why it has chosen, contrary to United States Supreme Court precedent, to address the asserted harms by regulating speech rather than the underlying activity."
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