Court to Decide Re Advertising

The argument is that if online gambling is illegal then supporting advertising for offshore online gambling sites is also illegal. However one operator decided to challenge that argument and took the case to court.

An Internet based service that publishes information about the industry has taken the issue of advertising to district court in Louisiana in order to decide whether advertisements for websites qualify as protected forms of free speech.

The lawsuit is the first brought against the federal government, which has been caught up in a hard line attempt to crack down on online gambling. Prosecutors last year started a grand jury investigation into the efforts of American media companies, including major search engines that publish or broadcast advertisements for offshore casinos. The Justice Department argues that American media companies that carry advertising are aiding offshore casinos. According to prosecutors, the gambling operations are illegal and so by default, so are the advertisements.

But some legal experts have challenged this argument because they say it is not clear that federal law prohibits all forms of online gambling. Some even argue that if the courts deem online gambling illegal, advertising for the casinos may still be covered by constitutional protections as commercial speech.

Barry Richard, a lawyer for the operator that has gone to court over the matter, said advertisements deserved the same protection as an advertisement in a national magazine for a casino in Las Vegas. Such a magazine, Mr. Richard said, would not be held criminally liable if it were distributed and read in California, even though the Las Vegas casinos are not licensed there.

By analogy, Mr. Richard said, because Internet gambling is permitted overseas, the advertisements should not be illegal in this country. Moreover, some states, including New York, do not make it a crime to place a bet over the Internet.

The government "is not permitted, just because it has some policy against conduct, to keep people from knowing that the conduct is legal elsewhere," said Mr. Richard, who represented President Bush before the Florida Supreme Court during the 2000 election dispute.