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Opinion Court ignores the feathers on its rabbit

In the not-too-distant future, perhaps the Mustang Ranch or some other Nevada brothel will open a franchise operation in North Carolina.

What? Isn't prostitution illegal in this state?

Sure, but so is video gambling, except at the casino operated by the Eastern Band of the Cherokees.

Just don't tell that to the judges who make up the North Carolina Court of Appeals. Video gambling, in the view of the court, is a freedom of speech issue, not a regulation of conduct issue.

And so, if video gambling can be reduced to freedom of speech, surely prostitution can be reduced to freedom of association. If the First Amendment can be invoked to protect one, why not the other?

Amazingly enough, in the latest court ruling overturning North Carolina's ban on video gambling, Court of Appeals Judge Ann Marie Calabria, in writing the opinion, doesn't even get to the obvious until the bottom of page 3: This case is about gambling, not video games.

The opinion, though, caves to legal machinations to conclude that -- because the state allows other forms of sweepstakes games (think McDonald's scratch-off cards) and because video games are constitutionally protected as free speech -- this form of gambling is protected speech.

In other words, just because it walks like a duck and quacks like a duck doesn't mean that it's a duck. No, it's really a rabbit, with feathers and a bill.

Who cares that the current crop of "Internet sweepstakes games" is really just the latest generation of video poker intended to get around earlier attempts by state legislators to ban the games?

Fortunately, the three-member court panel was split 2-1. That means that the state Supreme Court will get a whack at the case as well.

In his dissenting opinion, Judge Robert C. Hunter notes that nothing in the state law banning video terminal gambling prevents these so-called Internet cafes, which have sprung up offering the games of chance, from displaying whatever they wish on their video terminals. They simply can't do that while being associated with sweepstakes payouts.

Hunter also makes the point that the law is about conduct, not speech.

"The protection of the morals of our State's inhabitants is a legitimate government purpose," he wrote.

No doubt, the state's moral position has been undermined by the state-enacted lottery.

It doesn't change the fact that allowing gambling establishments to pop up on every commercial street corner will have corrosive effects on the state and its residents.

Maybe our judiciary doesn't believe that the legislature, after spending almost decade passing laws that attempt to prevent that from happening, has a role promoting the general welfare. That seems to be the message being sent.

If so, can the Mustang Ranch be far behind?

Just move here, sue and invoke your First Amendment





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published: 10/18/2013
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