Washington State Online Gambling Ban
Published: Monday, June 26, 2006 Online-Casinos.com
CRITICISM OF WASHINGTON STATE ONLINE GAMBLING BAN CONTINUES
Some legal experts say it's too broad to hold up in court
Widespread criticism of Washington state's ban on online gambling and threats that this could result in felony prosecutions for advertising online venues continued this week.
The Seattle PI and other mainstream media carried stories indicating that some weeks after the promulgation of the new state law there were some serious legal doubts about its propriety, with legal experts questioning whether it would hold up in court.
First Amendment experts said the provisions of the legislation might be too broad, leaving people who own or operate Web sites at risk of prosecution for posting links to online casinos or even writing about Internet gambling.
Critics say the state must have a strong reason and a very specific law to limit free speech, even in cyberspace.
"Providing a hypertext link does not seem to me to aid and abet gambling," said Michael Overing, a Los Angeles lawyer who specialises in the First Amendment. "Perhaps the law is overbroad in that respect."
Craig Baker, a Seattle attorney with expertise in Internet issues, said people have broad latitude about what they can put on their Web sites. Typical exceptions are aggressive or fighting words urging violence, obscenity and threats to national security.
"The basic rule is that there's no liability for placing a link on a Web site," he said. "Traditionally, there is great deference paid toward free speech."
Anyone who "knowingly transmits or receives gambling information" using the Internet is guilty of a Class C felony punishable by up to five years in prison according to the new law, which took effect on June 7.
Despite the draconian nature of the legislation, the director of the Washington State Gambling Commission, Rick Day is reported as saying that most people need not worry about it impacting on them. The state isn't out to get gambling aficionados who blog about casinos or post tips on how to beat the dealer at blackjack, he said.
But he also said links or references to online gambling could conceivably spell trouble for webmasters. "What you have to look at is whether that is a solicitation or inducement for people to engage in something that's illegal," Day opined, adding that the state will deal with Web sites on a case by case basis and is more likely to go after big corporations that link to gambling sites than "a small local entrepreneur."
Day surmised that first time offenders would probably be served with a cease-and-desist order pointing out the violation, with non-compliance leading to further action.
The state Attorney General's office believed it can defend any Constitution-based action against the new laws. Janelle Guthrie, spokeswoman for the state Attorney General's Office told the media, "We don't believe these laws are vague, and if they were challenged as unconstitutional, we would defend them."
The state's gambling laws don't specifically prohibit newspapers or other news media outlets from reporting on, or even linking to, illegal gambling sites but do prohibit advertising or otherwise promoting it, according to the Attorney General's Office.
And a professor of constitutional law at Seattle University, David Skover agrees with her, saying that the new law is valid because linking to a gambling site can be interpreted as a form of advertising. "There is neither federal nor state constitutional protection for advertising for an illegal activity," he said.
On the other side of the argument, University of Washington law professor Stewart Jay questions how ordinary citizens can be prosecuted for transmitting or receiving gambling information, as the law words it, while newspapers and television stations are exempt. "If a publication puts it on the Internet, it's legal. If Joe Blow puts it on the Internet, it's illegal," he said. "It's a very crude distinction that's being made here. When you discriminate between forms of speech and providers, the government has to provide a compelling reason." Jay concluded that this part of the law is "very problematic" and could easily be challenged.
State Sen. Margarita Prentice, who sponsored the Internet gambling bill, said the new law will discourage people from visiting illegal gambling sites - most of which are operated outside the United States.
"The point is, if it's illegal, it's illegal," Prentice said. "We were defending our state, and we cannot have illegal gambling."
