By L.A. Williams, Correspondent
Christian Action League
October 19, 2012
RALEIGH — Does North Carolina’s ban on video sweepstakes address conduct or speech? If it does regulate speech, is that speech content based or content neutral and could it be considered commercial speech? Is the law overly broad or precisely targeted to rationally relate to the State’s police powers?
These are just a handful of the many legal questions the North Carolina Supreme Court must consider after hearing arguments Wednesday in two cases challenging the July 2010 legislation that made it illegal for a person “to operate, or place into operation, an electronic machine or device to conduct a sweepstakes through the use of an entertaining display,” or “to promote a sweepstakes that is conducted through the use of a display, including the entry process or the reveal of a prize.”
A divided panel of the state Court of Appeals had struck down the law in March in a ruling involving Hest Technologies v. the State and Sandhill Amusements v. the State. Solicitor General John Maddrey represented North Carolina in Wednesday’s appeal to the State Supreme Court and told the justices that the ban reflects lawmakers’ attempts to prohibit the gambling behavior inherent in video sweepstakes play.
“The statute reflects an attempt to narrowly tailor the language to the specific problem presented and to avoid any potential over-breadth,” he said.
He said the sweepstakes parlors targeted in the ban are different from the promotional games offered by fastfood outlets, which remain legal.”McDonald’s can still tell you the results of their sweepstakes using a video game, but not using an electronic machine or device that’s onsite and owned by the operator,” Maddrey said, citing the state law’s provisions.
“The difference is that you’re not going to stay at that McDonald’s location and buy Big Mac after Big Mac after Big Mac after Big Mac to keep playing that sweepstakes.”
The statute doesn’t prohibit any video game; any video game can be bought, sold and played. It doesn’t prohibit the use of sweepstakes…” he further explained. “What it does is address this seductive combination of the opportunity, the chance, to win a prize with the playing of a video game.”
But Hest attorney Adam Charnes and attorney Kelly Daughtry, who represents Sandhill Amusements, said the case hinges on the issue of free speech, though each put a different spin on its merits.
The case is actually quite straightforward — the General Assembly enacted a law that by its express terms imposes a criminal punishment based on the use of an entertaining display. Indeed the preamble to the statute makes crystal clear the very reason for the prohibition is the expressive and entertaining value of that display. Specifically the state believes that the video games used as part of the entertaining displays are too entertaining and that they will induce people to repeatedly play the games,” Charnes said as he argued that entertainment in general, and video games in particular, are protected speech under the First Amendment.
He said that because the use of video games is the only aspect of the sweepstakes that is prohibited, the law is obviously aimed at inhibiting speech and therefore any attempt by the state to limit it should be held up to strict scrutiny.
Charnes said the speech in question includes two aspects: the video game itself and the communication of the results of the sweepstakes. But Daughtry said the reveal and the sweepstakes are not different things, but one and the same — a way of sharing information. She zeroed in on the state’s use of the words “entertaining display” and “visual information” in the statute and said lawmakers should have banned the device rather than the display if they wanted their law to withstand constitutional scrutiny. She also insisted that the use of the games is not gambling because it does not include “prize, consideration and chance.”
But in his rebuttal, Maddrey pointed out that the statute does in fact address the use of the machines as opposed to simply focusing on the information communicated.
“The statute needs to be read carefully and completely,” he said. “…I believe the discussion was that the Legislature could properly ban the device but not an entertaining display. Here the defined term ‘electronic machine or device’ is critical.”
He also challenged Daughtry’s argument that video games are a “constitutionally protected manner of speech,” reminding the Court that “modes of speech are subject to reasonable time, place and manner restrictions.”
“There is no unrestricted right to play a video game,” he said. “You can’t play a video game during take-off and landing on an airplane.”
The state’s seven-member Supreme Court is expected to announce its ruling in the case within two to four months. This week’s hearing was the latest chapter in an ongoing legal saga since Tar Heel lawmakers sent video poker packing in July of 2007. The gaming industry immediately began to sidestep the ban, using Internet-based games rather than stand-alone machines and insisting that players were not gambling, but simply buying Internet or phone time and checking to see if they had possibly won a prize.
Sandhill filed suit against the sweepstakes ban in Wake County where Superior Court Judge Paul Ridgeway dismissed the case, but in Guilford County, Judge John Craig III ruled in favor of Hest.
The nationwide manufacturer of video sweepstakes systems has been in the news quite a bit this past summer as Texas investigators raided the business and the homes of several Hest executives in August, arresting four top managers on charges of felony gambling, money laundering and organized criminal activity charges.
“We continue to ask Christians to pray for our State Supreme Court justices as they study and rule on this issue,” said the Rev. Mark Creech, executive director of the Christian Action League.” They need wisdom as do our lawmakers who will be headed back into session in January and will, no doubt, have to deal with this ongoing issue of gambling.
