iMEGA to Make Its Case 'in No Uncertain Terms'

30 September 2008

The Interactive Media Entertainment & Gaming Association, known best by its acronym, iMEGA, is invoking a constitutional doctrine to fight the Unlawful Internet Gambling Enforcement Act in a federal appeals court.

Born out of the due process clauses in the Fifth and Fourteenth Amendments of the United States Constitution -- which govern the principle that the government must respect all of a person's legal rights -- the void for vagueness doctrine requires criminal statutes be written in a language clear enough for the average person to understand.

Edward J. Leyden, an attorney in Washington, D.C., and president of iMEGA, told IGamingNews that the Unlawful Internet Gambling Enforcement Act -- or UIGEA -- violates the Constitution because it imposes criminal sanctions that are based on undefined crimes.

"What is unlawful Internet gambling?" Mr. Leyden asked. "The statute (UIGEA), plain and simple, simply does not define it."

On Monday, iMEGA filed briefs in the United States Court of Appeals for the Third Circuit. The trade association's initial complaint against the United States, which was filed in June 2007, was dismissed by Judge Mary L. Cooper of Federal District Court in New Jersey in March 2008.

The association, however, was granted standing to represent the I-gaming industry, or "the interests of persons and companies which provide Internet interactive gaming and gambling services," according to court documents.

Mr. Leyden, who serves as the vice chairman of the American Bar Association, said iMEGA is reiterating its original argument that the UIGEA infringes upon basic constitutional rights and sets a dangerous precedent for e-commerce transactions.

But the vagueness argument is emphasized in the appeal because Judge Cooper, in her decision, recognized that iMEGA's First Amendment claims may fall under a larger due process umbrella, he said.

Void for vagueness, a legal concept in American constitutional law, is also applied to curb arbitrary or seriously discriminatory enforcement of criminal statutes.

Mr. Leyden said the UIGEA's lack of definition of "unlawful Internet gambling" permits the government to enforce the law by causing banks -- the law's intended enforcement mechanism -- to lump "good" sites in with the "bad" ones, making no distinction between the two.

"And that the Constitution says you cannot do," he said. "Most people can easily get their minds around this. This goes right to what we all consider to be fair and unfair -- when we were four years old we knew this. You can't punish me for something I didn't do. Simply because my little sister spilled the milk you're going to punish me? It wasn't fair when you were four years old, and it's not fair now."

The association also argues that by delegating power to the Treasury Department and Federal Reserve Board to define "unlawful Internet gambling," the legislative branch is nullifying the Constitution.

"Under the separation-of-powers clause in the Constitution, the legislative branch cannot defer that duty to any other branch," Mr. Leyden said. "Moreover, it's delegating to someone else the making of basic policy matters."

Mr. Leyden believes it is even more dangerous to defer the job to the United States banks and financial institutions.

"As a matter of constitutional law, you simply cannot do that," he said. "And the way it (UIGEA) tries to do it is, in and of itself, additionally unconstitutional."

"We don't just say this is ambiguous," he added, referring to the case his association intends to make. "We lay out why it's ambiguous, and we do that in no uncertain terms."

Click here to view iMEGA’s appeal brief.

Emily Swoboda is the senior staff writer at IGamingNews. She lives in St. Louis, Mo.