Ashcroft Responds to I-Gaming Freedom of Speech Complaint

26 July 2004

Lawyers for Attorney General John Ashcroft have filed a motion to have a case challenging that the Wire Act violates constitutional freedom of speech dismissed.

The case was filed Dec. 22, 2003 in the U.S. Disctrict Court of Arizona by Michael Rossides, who maintains the Web site In it, Rossides argues that probability bets are statements that contain financial incentives to promote truth and honesty. The complaint, filed against Ashcroft, asks for a declaratory judgment recognizing that bets are a form of speech protected by the First Amendment.

The reply by Ashcroft's legal team on June 28 contends that the case should be dismissed because the court does not have subject-matter jurisdiction over the case.

Lawrence Walters, an attorney specializing in interactive gaming and freedom of speech issues, said the government's motion contains "the common knee-jerk responses we usually see when a challenge to a federal statute is filed. They come up with every argument possible to convince the court not to rule on the merits. A ruling means there is a risk of bad precedent for the government, and they don't like that."

He added, "On the other hand, in this case, some of the government's concerns may be well taken. In order to establish standing to sue, a plaintiff ordinarily needs to show a real threat of enforcement, and not just a possibility that he may be charged some time in the future. While this is certainly a novel challenge, I am doubtful that the plaintiff will find a court in the land to rule in his favor, and conclude that the government cannot regulate bets because of the speech component. Many criminal acts are communicative in nature, such as prostitution, extortion or solicitation of murder. The First Amendment will generally offer no protection in such circumstances."

Ashcroft's lawyers argue that Rossides, who says he does not yet offer wagers though he would like to, does not have standing because he has not shown a "genuine threat of imminent prosecution under the challenged Act." The defendant also argues that while Rossides' complaint claims several times that he intends to offer betting, he does not provide a specific, concrete plan to do so, which is a requirement for a plaintiff to have standing. The defendant further states that Rossides has no standing because he has not alleged that any governmental authority has threatened him with prosecution under the Wire Act and because the history of enforcement under the Wire Act does not indicate that Rossides' fear of imminent prosecution is reasonable.

Lawyers for the Ashcroft also challenge Rossides' complaint on the grounds that it is not yet ripe, arguing that the factual record is not developed because Rossides has not engaged in any activity violating the Wire Act and that he will not suffer hardship if his claim is not decided at this time.

An alternative argument for dismissal put forth by the defendant is that Rossides has failed to state a First Amendment claim. The Wire Act, according to Ashcroft's lawyers, is not directed at speech or expression. Citing a case from 1989 (Dallas v. Stanglin), the motion to dismiss states, "It is possible to find some kernel of expression in almost every activity a person undertakes. . . but such a kernel is not sufficient to bring the activity within the protection of the First Amendment."

The defendant also refers to United States v. O'Brien, a case resulted in a three-pronged test to determine whether when "speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms."

The defendant's final argument claims that probability bets--if speech at all--are commercial speech, and therefore not protected by the First Amendment.

Rossides has until July 30 to file a response to Ashcroft's motion to dismiss. If the court grants his request for an extension, he would have until August 30. The Department of Justice would then have 15 days to file another response, after which the court would issue a ruling within 10 days.

Click here to view the motion to dismiss.

Bradley Vallerius

Articles by Bradley P. Vallerius, JD manages For the Bettor Good, a comprehensive resource for information related to Internet gaming policy in the U.S. federal and state governments. For the Bettor Good provides official government documents, jurisdiction updates, policy analysis, and many other helpful research materials. Bradley has been researching and writing about the business and law of internet gaming since 2003. His work has covered all aspects of the industry, including technology, finance, advertising, taxation, poker, betting exchanges, and laws and regulations around the world.

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