Casino City Continues to Build Its Case

Casino City’s lawyers on Thursday filed their reply brief with the United States Court of Appeals for the Fifth Circuit in the company’s declaratory judgment case against the U.S. Department of Justice (DOJ). Shorter than the other briefs filed by both Casino City and the DOJ, this final brief for the circuit court presents a concise point-by-point rebuttal of each of the points that the DOJ has emphasized.

The district court that first reviewed Casino City’s case dismissed it on the grounds that Casino City lacked standing to bring the case to the bar. That court ruled that Casino City failed to establish an actual case or controversy because it did not sufficiently demonstrate that it faces a realistic danger of sustaining direct injury. After its success with the district court, the DOJ has continued to hammer upon the same points, hoping for a dismissal from the circuit court on the same grounds. Casino City’s arguments, however, appear sharper in this final brief than in its other three.

Although the language of the DOJ’s briefs implies that Casino City is challenging a statute, the group’s final brief makes it explicitly clear that the focus of its challenge “is whether the statutes are being interpreted by the DOJ, and threatened to be applied to Casino City and other similarly situated, in an unconstitutional manner.”

Despite the DOJ’s insistence that Casino City has failed to allege that it engages in illegal activity, Casino City is adamant that it is not necessary to allege that it has violated a statute. The company wants the court to determine whether the DOJ has unconstitutionally used its authority to stifle protected speech, and it is not necessary for a company to allege that it has broken the law in order to issue such a challenge. In an effort to demonstrate that the DOJ’s notion of illegal activity being a prerequisite of such a challenge is impractical, Casino City writes, “To mandate that a plaintiff must always allege that they are violating the law in a First Amendment action based on chill of free and protected speech would be to ignore the very crux of such a First Amendment claim.”

The DOJ has also persistently argued that Casino City faces no threat of prosecution because the company received neither the letter to the National Association of Broadcasters (NAB) nor a subpoena and because more than a year had passed between the time the NAB letters were issued and the time Casino City filed its lawsuit. Casino City counters by arguing that it is of no constitutional significance in a chilled speech context that Casino City was not the direct recipient of the DOJ’s warnings or that the DOJ has not launched a single prosecution against an advertiser. According to Casino City:

It is particularly troublesome from a constitutional standpoint if the DOJ does not intend to effectuate prosecutions. If successful with this posture, the DOJ would be able to effectively immunize itself from judicial review of a course of conduct designed to stifle free speech. Such a course of action goes to the very core of the chilling doctrine.

As for the amount of time between the DOJ’s actions and the filing of Casino City’s case, the company states that its First Amendment rights are ongoing and it has not waived those rights because of the time at which it believed it necessary to file an action. It also contests that one year had passed from the time the company actually received a copy of the letter and the time it filed its suit; it claims that the record pertaining to the timing of its receipt of the letter is simply not developed.

In fact, Michael Corfman, president of Casino City recently told iGamingNews, “The District Court incorrectly concluded that we sat on the NAB letter for more than a year. We actually received a copy of the NAB letter only a few months before we filed suit against the DOJ.”

First Amendment Claim

Casino City alleges that the DOJ has distorted the First Amendment issue when it stated, “Whether consistent with the First Amendment, Congress may prohibit advertising for illegal gambling.” The company tries to clarify the matter by stating: Casino City agrees that of course Congress can prohibit advertising for illegal gambling. However, it has not. It has only prohibited some forms of gambling. Again, Casino City is not challenging the validity of any statute. It challenges the DOJ’s interpretation and application of federal statutes to Casino City and others similarly situated.

The company also demonstrates how the DOJ’s assertions in its Answer Brief are at odds with what it threatened in its letter to the NAB. The DOJ claims in its brief that Casino City faces no risk of prosecution because it does not allege to carry ads for illegal gambling. Casino City points out that in its letters to the NAB, the DOJ made no distinction between legal and illegal online gambling and pronounced all forms of online gambling to be illegal. According to Casino City:

Such a blanket posture regarding the legality of online gambling is erroneous. This court has held that online casino gambling is not prohibited by [the Wire Act]. . . . And there is an absence of case law applying [the Illegal Gambling Business Act and the Travel Act] to online gambling. . . . Thus, the conclusion by the DOJ and by the district court that online gambling is per se illegal is overreaching to say the least.

Such a posture, argues Casino City, ignores principles set forth by the U.S. Supreme Court, which has ruled in multi-jurisdictional First Amendment advertisement cases that an advertiser may not be prohibited form disseminating truthful information about an activity that is legal in another jurisdiction.

Finally, Casino City questions why the DOJ has not explained why is feels a blanket ban on the advertising of online gambling, which is legal in some jurisdictions, is the least restrictive means to serve its interests. The company’s brief concludes:

To the extent that the DOJ criticizes Casino City for not presenting lesser restrictive means as alternatives to the district court, Casino City points out that the record in this case is not yet developed. Moreover, if there is any pertinent omission pertaining to this point, it is that the DOJ has failed to show why it has chosen, contrary to United States Supreme Court precedent, to address the asserted harms by regulating speech rather than the underlying activity.

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