Advertising Liability in the Online Gambling Industry By: Lawrence G. Walters www.GameAttorneys.com

Signs of a crack down on gambling advertising by United States authorities began to emerge in October, 2003, as word of an investigation into gaming portals and advertisers leaked out. Raymond W. Gruender, Assistant U.S. Attorney General for the Eastern District of Missouri, launched the investigation by issuing numerous subpoenas to media outlets in the wake of his earlier letter to the National Association of Broadcasters, and others, warning that the practice of accepting gambling advertising may constitute aiding and abetting illegal conduct under federal law.[1] The letter further warned that “state and federal laws prohibit the operation of sportsbooks and Internet gambling within the United States, whether or not such operations are based offshore.”[2] Interestingly, the correspondence noted that the volume of online gambling advertisements for offshore sportsbooks and online casinos is “troubling” because it misleads the public into concluding that such gambling activity is legal when, in the opinion of the Justice Department, it is not.[3] The letter cast itself in terms of a “public service announcement,” however it was clearly designed to intimidate advertising venues into ceasing all further online gambling advertising.

The subpoenas were designed primarily to acquire evidence relating to commercial and financial information about the advertisement of Internet casinos and sportsbooks. The subpoena also called for the operators to turn over any notes or correspondence relating to the legality of accepting advertising from Internet casinos and sportsbooks.[4] Although the full extent of the investigation has yet to be disclosed or uncovered, it appears that many Websites, media outlets and major sports information networks have all been served with subpoenas.[5] The industry panic generated by news of the investigation caused at least one major online gaming conference scheduled for November, 2003, in Orlando, Florida, to be canceled.[6] Now that the initial shock of this apparently widespread investigation begins to wear off, the industry must take a hard look at the law and the politics supporting this investigation, and develop a coherent and unified response thereto.

Advertising, Aiding & Abetting

Although no federal law specifically prohibits online gambling advertising, the government has hinted that it may pursue charges against those who accept such advertising under an “aiding and abetting” theory. The offense of “aiding and abetting” is defined under Title 18 U.S.C. § 2, which provides in pertinent part: “a) whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.” That offense occurs when a defendant willfully associates himself with the criminal venture and willfully participates in it as something he wished to bring about.[7] In order to be responsible for aiding and abetting, the accused individual must have had general awareness that his role was part of overall improper/illegal activity, and must have knowingly and substantially assisted violating a law.[8] Depending on the specific subsection of the federal aiding and abetting statute utilized by a prosecutor in a criminal case, the government would either be required to prove that another person committed a crime and that the defendant assisted in the commission of such offense[9] or that the defendant willfully caused another person to commit an act which would have been a crime had the defendant committed it himself.[10] In the later circumstance, the government need not prove that someone else committed any crime.[11]

In order for the government to obtain a conviction for aiding and abetting, it must therefore, prove that the defendant aided or abetted another in violating some substantive criminal offense. In other words, aiding and abetting does not occur in a vacuum, but only in relation to some other criminal law violation. Deputy Assistant Attorney General John Malcolm claims that both state and federal laws prohibit online gambling in the United States. However, no specific federal statue is listed as authority for such contention.[12] The most commonly cited basis for claiming that online gambling is illegal in the United States is the “Wire Act,” 18 U.S.C. § 1084(b). This law prohibits the transmission of bets in interstate or foreign commerce, with certain exceptions, safe harbors, and limitations.[13] The applicability of the Wire Act to Internet-based gambling is in doubt, however, due to conflicting federal court decisions.[14] Therefore, the legal viability of any aiding and abetting theory used against a gambling advertiser would be necessarily dependent on the applicability of the substantive offense charged; i.e. the Wire Act. If the Wire Act does not apply, the aiding and abetting charge fails. Moreover, it is important to note that advertising, alone, has rarely been found to be a sufficient basis for supporting a charge of criminal aiding and abetting under federal law.[15] The United States Supreme Court has not chosen to resolve the conflict between the federal circuit courts on this issue, and thus the merits of the government’s contention remains questionable. Although the government may attempt to apply other federal statutes to take the place of the Wire Act as a substantive offense, such as the Wagering Paraphernalia Act or the Travel Act, such theories would be long shots at best and highly dependent on the specific facts of a particular advertising relationship. Moreover, case law is equally uncertain as to the applicability of the Travel Act or the Wagering Paraphernalia Act in the virtual gaming realm. The uncertainty over substantive federal prohibition on Internet gambling may soon be resolved if the “Unlawful Internet Gambling Funding Prohibition Act” (H.R. 21) or the substantially similar Senate version (S. 627) become law. The United States Congress has been considering some form of online gambling prohibition for years now, however, this effort appears to be gathering steam. Another basis for potential advertiser liability could be a violation of the Federal Trade Commission Act which prevents false or misleading advertising. It has been held that the constitutional guarantee of free speech does not protect such misleading advertising.[16] Government officials may be setting the stage for such a claim in light of the reference to the allegedly misleading nature of online gambling advertising contained in Gruender’s warning letter. Federal Trade Commission violations have commonly resulted in civil or administrative proceedings as opposed to criminal prosecution. However, the nature of the pending investigation and the tone of the warning letter appear to indicate that the government has something more serious in mind. To summarize, the government’s aiding and abetting theory as a basis to hold advertisers liable for acceptance of online gambling advertising is on shaky ground and dependent on the ultimate applicability of the underlying offense that the government claims the advertiser to have aided or abetted. The state of the law is exceedingly unclear on the substantive regulations relating to online gambling, thus rendering the aiding and abetting theory novel, at best.

The First Amendment & Commercial Speech

Considering the potential applicability of the aiding and abetting offense is only half the story. Irrespective of whether such offense can be made to apply to online gambling advertising, any defendant selected for prosecution under this theory would be certain to mount a First Amendment defense focusing on the right to disseminate commercial speech. In the United States, advertisers enjoy some degree of constitutional protection under the First Amendment since they are engaged in the publication of commercial speech.[17] In fact, the United States Supreme Court has held that the government cannot regulate speech about gambling to the same degree it can regulate gambling itself.[18] Moreover, advertisers may be allowed to advertise conduct that is illegal in the geographic location of the target audience, so long as that conduct is legal where it actually takes place.[19] All of this begs the question of whether, or more appropriately where, online gambling is legal? Such nuances will be difficult to discern since, from a technological standpoint, it is difficult to even conclusively determine where the gambling transactions actually take place. Does the “bet” occur at the moment the key stroke is made, or when it is received by the server, or when processed by the offshore gambling entity? This legal/technological quagmire has thus far dissuaded most federal prosecutors in the United States from taking on the Internet gambling industry through widespread prosecution. However, gambling advertisers are now apparently seen as an easier target.

Most of those media outlets targeted by the recent federal investigation are large, mainstream entities, with much to lose both in terms of revenue and public opinion, if they are viewed as participating in illegal activity. Most also have alternative sources of advertising revenue, thereby encouraging the outlets to eliminate the online gambling advertising entirely, and seek to replace it with other subjects. While eliminating the problem by substituting the advertisers may appear to be an attractive “quick fix” for the media outlets, that action does not resolve the larger and more important constitutional concerns. Can United States authorities threaten to prosecute media outlets with “aiding and abetting” or other vicarious liability offenses each time the government dislikes the nature of the services being advertised? Such an intimidation campaign results in what lawyers call the “chilling effect” on protected speech. In other words, those companies or individuals threatened with potential prosecution are more likely to self-censor instead of risking potential conviction which, in the gambling arena, can result in substantial penalties. The online gaming industry cannot likely rely upon the media outlets to fight this battle, as it belongs to the industry, itself. A unified industry response is therefore necessary to preserve the commercial speech rights applicable to online gambling advertising.

The Industry Response

In order to preserve the ability to continue placing Internet gambling advertising with American media outlets, the online gambling industry, along with its various trade groups, must consider meeting the government’s threats head on with decisive action. Hopes that someone else will address this problem or the infamous “wait and see” approach are not viable options if advertising rights are to be preserved in the current political climate. A narrow window of opportunity may be available for the industry to mount a constitutional challenge in response to the threats and intimidation emanating from the Eastern District of Missouri. Title 28 U.S.C. 2201 & 2202 allow a litigant to seek a “declaratory judgment” as to the legality or constitutionality of a contract, statute, or governmental action. In order for one to mount such a challenge, the plaintiff(s) must have “standing” which is generally defined as a recognizable stake in the controversy. The threatened aiding and abetting charges may well provide that standing to allow an industry response in the form of a test case. Actual injury has occurred to various gambling sites, in that media outlets have pulled online gambling advertising in response to the government’s threats, resulting in substantial lost revenues.[20]

Such test cases are common in other industries. For example, when the video game industry was threatened with the enactment of a rash of local ordinances prohibiting minors from accessing violent video games, its trade association brought a test case seeking to invalidate such ordinances on First Amendment grounds.[21] In that case, the trade association prevailed, and the ordinance was invalidated.[22] While nothing in this article constitutes legal advice as to the viability of such a challenge as directed to the current gambling advertising crisis, such a response should be considered and potentially pursued given the effectiveness of similar challenges in other industries. The industry should also carefully consider a media blitz focused on educating advertising outlets and consumers on the issues addressed herein. Private educational efforts directed at the legal departments of specific outlets may also be in order. Irrespective of the response option selected, decisiveness and timing are critical. Should the government actually charge advertisers or media outlets with aiding and abetting offenses, the opportunity to mount an industry-funded test case may be lost. Once a prosecution occurs, the government will likely argue that any constitutional concerns relating to the policy of charging advertisers can be readily decided in defense of the criminal charges, and need not be considered in a suit for declaratory judgment. The government has a track record of making such arguments, and therefore any hesitation may work against the industry.

Conclusion

The current investigation and intimidation of online gambling advertising outlets represents another chapter in the story of hostility towards First Amendment rights that seems apparent in the current political administration. The battle lines should be drawn here as a victory by the government in this circumstance will both embolden the U.S. Justice Department to ramp up its effort against the industry and result in substantial loss of advertising outlets.

[1] Igamingnews.com, US Court Subpoenas Gaming Portals (9.30.03). [2] Correspondence from John G. Malcolm, Deputy Asst. Attorney General, Criminal Division, United States Department of Justice (06.11.03) A copy of the letter can be viewed at http://www.igamingnews.com/articles/files/NAB_letter-030611.pdf [3] Id. The reference to “misleading” advertising is significant as will be discussed, infra. [4] Igamingnews.com, US Court Subpoenas Gambling Portals, (09.30.03). [5] Press Release, DOJ Serves Illegal Subpoenas for Online Gaming, www.WinnerOnline.com (10.30.03). [6] Id. [7] United States v. Indelicato, 611 F.2d 376, 385 (1st Cir. 1979); See also United States v. Longoria, 569 F.2d 422, 425 (5th Cir. 1978). [8] Mercer v. Jaffey, Snider, Raitt, Heuer P.C., 713 F.Supp. 1019 (W.D. Mich. 1989) [discussing aiding and abetting in the context of securities fraud]. [9] 18 USC § 2(a). [10]18 USC § 2 (b). [11] US v. Cohen, 260 F.3d 68, 77 (2nd Cir. 2001). [12] Correspondence from John G. Malcolm, Deputy Asst. Attorney General, Criminal Division, United States Department of Justice (06.11.03) A copy of the letter can be viewed at http://www.igamingnews.com/articles/files/NAB_letter-030611.pdf. [13] Id. [14] Compare United States v. Cohen, 260 F.3d 68 (2nd Cir. 2001) [Finding that the Wire Act prohibits Internet gambling in some forms.] with In re MasterCard International, Inc., Internet Gambling Litigation, 132 F.Supp.2d 468 (E.D. LA 2001) aff’d 313 F.3d 257 (5th Cir. 2002) [Finding that the Wire Act does not prohibit Internet gambling.] [15] The closest analogy can be drawn to the concept of aiding and abetting intellectual property infringement where advertising has been found to be a sufficient basis for a claim of inducement to infringe. See: New Hampshire INS. Co. v. L.Chaidesconst. Co., Inc., 847 F.Supp 1452 (N.D. Cal. 1994); Continental INS. Co. v. Del Astra Industries, Inc., 1992 WL 471300 (N.D. Cal. 1992). [16] See Novartis Corp., v. FTC, 223 F.3d 783 (DC Cir. 2000). [17] 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 135 L.E.D 2d 711 (1996). [18] Greater New Orleans Broadcasting Association, Inc., v. United States, 527 U.S. 173, 119 S.Ct. 1923, 144 L.E.D.2d 161 (1999). [19] See Id. [20] See FN 5 [21] Interactive Digital Software Association v. St. Louis County, 329 F.3d 954 (8th Cir. 2003). [22] Id.

Lawrence G. Walters, Esq., is a partner in the national law firm Walters Law Group. Mr. Walters represents clients involved in all aspects of online gaming operations. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at larry@firstamendment.com, through his website: www.GameAttorneys.com, or via AOL Screen Name: “Webattorney.”