Criminal law

Guest Post: Lawsuit challenges online gambling ban in Washington state

Michael Erdman Criminal law, Guest Posts, Internet-specific laws, Online applications, Pending litigation

In addition to being a skilled chess player, my partner John Leonard is also no stranger to the inside of a casino. While I don’t think he’s ever made a virtual wager, I thought he’d enjoy summarizing the following case, which challenges Washington’s Internet gambling prohibition. Thank you to Mr. Rousso for sharing the discovery request linked to below. -MHE

On the first day of the 2007 World Series of Poker Main Event, Lee Rousso, a resident of King County, State of Washington, filed a lawsuit in the King County Circuit Court asking that that State’s law barring internet gambling be declared unconstitutional. The law was passed in 2006, and became effective in June of that year.

According to the complaint filed in the suit, Rousso, from June, 2003 to June, 2007, regularly logged on to pokerstars.com, described as the “world’s leading internet poker site,” and played poker against other Pokerstar customers. Although most of Rousso’s internet poker playing involved “play money,” some of the games were allegedly played for virtual chips that represented real money.

Noting, among other things, that internet poker is not illegal under federal law, and that gambling, including poker, are legal in the State of Washington, Rousso charged in his suit that the Washington law outlawing internet poker was unconstitutional in that it violated the Commerce Clause of the United States Constitution because it: (1) discriminates against internet poker in favor of legal “brick-and-mortar” casinos in the State of Washington; (2) places an undue burden on interstate commerce; (3) places an undue burden on international commerce; and (4) infringes upon the federal regulation of internet gambling, and violates the General Agreement on Trade & Tariffs (the “GATT Treaty”). Rousso also charged that the law violates the U.S. Constitution’s prohibitions against cruel and unusual punishment, and because of its vagueness, violates the 14th Amendment’s guarantee of due process of law to citizens of the several states.

Unfortunately for Rousso, despite his impressive complaint, the suit has thus far not gone well. In response to his complaint, the State of Washington served upon him a demand for production of information that, according to Rousso, is confidential and protected from disclosure by the Fifth Amendment’s protection against self-incrimination. The lower court then denied Rousso’s request for a protective order with respect to the production of the requested information, a decision that Rousso has appealed to the Division One Court of Appeals.

However, conceding that the State had won the first round of the case, Rousso has stated that he has waiting in the wings a substitute plaintiff who could come in to the case, or perhaps file a new case, pursuing the same constitutional challenges to the Washington law that are at issue in the present lawsuit.

I’ll be watching this one closely, and will update as further information becomes available. Knowing, however, how difficult it is to get a state statute declared violative of the U.S. Constitution, I believe that Mr. Rousso is in for an uphill fight.

One question that comes to mind is why Mr. Rousso did not seek to have the statute declared invalid under the Washington State Constitution. While I readily admit that I am not a Washington lawyer, and know nothing about the Washington Constitution, I am aware of the growing trend of citizens of the states seeking relief from allegedly oppressive statutes under their respective state constitutions, which in many cases offer expanded constitutional protections not available under the Constitution of the United States. Just a thought.

I pressed John for an example, and here’s what he came up with:

It appears to me that the following articles from Article I, Declaration of Rights, of the Washington Constitution apply directly to Mr. Rousso’s case. This is especially true of Article 12. Article 8 may not be directly applicable because it deals with the irrevocable grant of privileges and immunities, which I don’t think is what is involved in the statute that Mr. Rousso is challenging. I don’t understand why he didn’t raise these State Constitutional provisions in his Complaint.

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

SECTION 8 IRREVOCABLE PRIVILEGE, FRANCHISE OR IMMUNITY PROHIBITED.
No law granting irrevocably any privilege, franchise or immunity, shall be passed by the legislature.

Thanks again, John, for the guest post. For anyone interested, here’s the press release Mr. Rousso issued when the suit was first filed.

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A Massachusetts Nader for a Florida Gore? Deal.

Michael Erdman Criminal law, Elections law, First Amendment

Say you liked Gore in 2000 for President, but knew he didn’t need any help to win in your home state of Massachusetts. Instead, as the polls likely indicated at the time, he could have used your help in, say, Florida, where Gore and Bush were neck and neck.

Speaking of Florida, further suppose a complete stranger in Miami also preferred Gore to Bush in 2000, but both were inferior in her eyes to Ralph Nader, whose future federal matching funds, if any, would be computed, in part, based upon his popular vote tally in 2000.

Enter voteswap2000.com and votexchange2000.com, the founders of which had this precise scenario in mind back in the fall of 2000 when they introduced what I believe were the first vote-swapping websites. These sites conceivably could have introduced you to that Nader supporter in Florida via email, and paved the way for the two of you to agree to “swap” votes. Your candidate gets another vote in a close Florida race, and hers gets another vote to add to his popular vote total, apparently unconcerned with where such vote is cast.

But not so fast said the then-California Secretary of State Bill Jones, who accused voteswap2000.com of offering “to broker the exchange of votes” throughout the U.S, and maintained same was an illegal “corruption of the voting process.” He demanded termination, threatening voteswap2000.com that “[i]f you continue, you and anyone knowingly working with you may be criminally prosecuted to the fullest extent of the law.” The websites immediately disabled their vote-swapping mechanism, and apparently started working on their federal complaint.

Earlier this month the Ninth Circuit issued its opinion in Porter v. Bowen, which considered whether California could criminally prosecute the website founders, who alleged that such threat violated their First Amendment rights because same “was not sufficiently tailored to the advancement of the State’s legitimate interests and thus unlawfully burdened constitutionally protected speech and conduct.” Before ruling the panel considered the core components of the websites – the vote-swapping mechanisms, and the communications and actual vote swaps facilitated by the sites.

The panel found that the vote-swapping mechanisms were “entitled to at least some First Amendment protection,” given they conveyed useful information (i.e., voter email addresses), and expressed a reasonably clear message of support for third-party candidates. Also, the panel found that the communications enabled by the sites “likely concerned political preferences and possibly agreements to swap votes on election day . . . [t]his kind of communication is clearly protected by the First Amendment.” Finally, the actual vote swaps “involved people’s opinions on campaigns for political office which are precisely where the First Amendment has its fullest and most urgent application.” The panel concluded that California’s legitimate interests did not support the Secretary’s threatened criminal prosecution of such constitutionally-protected activities.

Commenting on these “novel online applications,” the Ninth Circuit held that

At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of votes in closely contested states. Whether or not one agrees with these voters’ tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

Here’s my three cents. First, the panel properly viewed the websites as voter tactics, distinguishable from “conventional (and illegal) vote buying.” Apparently the Secretary viewed the sites similarly, given his apparent apathy for vote-swapping agreements “made without the use of a website or other enabling mechanism” (a position the panel described as “problematic”). My advice to public officials considering future challenges to “novel” political websites: if the online activity you intend to challenge is legal in the brick and mortar world, chances are, unless you’ve got a narrowly-tailored statute or other basis in mind, you are going to be in for an uphill battle.

Also, in anticipation of a 2008 electoral climate just as intense as the last two presidential elections, I imagine we’ll see similar, perhaps more elaborate, websites pop up in the next 15 months. That, in turn, will likely cause at least one state or federal election regulator to throw down the gauntlet, perhaps encouraged in part by the Ninth Circuit’s reversal rate before the Supreme Court. I would expect that any court considering such a future challenge would see past any mootness arguments and issue a quick ruling. Whether a more conservative court would substantively rule along the lines of Porter is another issue.

Finally, I am curious whether the plaintiffs weaved Section 230 into any of their arguments that their websites were not criminally liable. Regardless, websites, bloggers and others should consider Porter a reminder that when the government starts ordering what can and cannot be done online, the First Amendment may be the best and only defense you need.

Prior reporting: News Blog and PC World