Insights - Advertising in the United States

6 February 2003

As more and more attorneys general in the United States target online casinos and sports books--and the media outlets that advertise their services--the gray area around where and what they can advertise continues to expand.

To shed light on the issue, IGN turned to advertising and Internet law expert Larry Walters for insight.

We asked Walters:

Is it explicitly illegal to advertise online gambling services in the United States or are the laws subject to interpretation?

"The government is less free to regulate commercial speech about a product or service than it is to regulate the activities being advertised."

Lawrence Walters: The law surrounding the advertising of online gambling is even more complex and obscure than the law relating to online gaming itself.

The reason it is so unclear is that advertising is considered a type of free expression, protected to a certain degree by the First Amendment to the United States Constitution. Therefore, the government is less free to regulate commercial speech about a product or service than it is to regulate the activities being advertised.

While a number of laws are currently on the books, which appear to prohibit or even criminalize advertising online gambling, many such laws would likely run afoul of the First Amendment, and therefore be invalid if enforced.

We are likely to see a significant amount of litigation surrounding this issue as affiliates start to more aggressively market to U.S. bettors and as the laws relating to actual operation of online casinos become more restrictive.

Trying to identify "hot" areas, or geographic places where law enforcement is more active, is a losing proposition.

The winds of political change are subject to rapid change. An analysis should be performed by the promoter, and its attorney, of potential advertising liability relating to any media or target location before the first ad spot is released.

This analysis should consider such elements as the target jurisdiction's laws, the target audience, the media used to deliver the message, the demographics of the population and any political or practical realities that might apply.

Lawrence G. Walters is a partner in the national firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles, and San Diego. Walters has developed an outstanding reputation for representing the interests of the online entertainment community. He has served as legal counsel for a variety of businesses and individuals involved in free speech and expression.

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