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Casino City's Attorney Barry Richard Discusses Lawsuit to Declare Online Gambling Ads Legal Free Speech

20 August 2004

Barry Richards is the lead attorney representing Casino City in its recently filed lawsuit against the United States Department of Justice. Casino City operates the gaming portal site, and aims to establish its First Amendment right to advertise online casinos and sportsbooks on the Internet.

TechtalkRadio host Andy Taylor interviews Barry Richard. (Listen using RealAudio)

Andy Taylor: What about gambling? What about gaming? This has become pretty big. The funny thing is, think about it, we never really hear about it. While we'll hear about Amazon and while we'll hear about e-bay, we don't really hear too much about online gaming casinos. It's almost been kind of kept in the back. You kind of wonder why. On the line with us is Barry Richard who is with the law firm of Greenberg Traurig and who's going to tell us a little about this case that is really trying to take forward to the Department of Justice. Barry, thanks for joining us.

Barry Richard: Well, my pleasure.

Andy Taylor: Tell us a little bit first. This has got a history since the internet has come about. People have wanted to get online, they've wanted to do many different things, among one of them, online gaming. Why has the Department of Justice gotten involved in this?

Barry Richard: I don't know what their motivation is. I imagine they are just following some policy directive from the top that has taken a position that they're somehow going to enforce what they believe to be appropriate anti-gambling laws.

Andy Taylor: Now, among these, they've been sending out letters to the National Association of Broadcasters and newspaper and magazine outlets really trying to squash any advertising and any possibility of getting the word out about online gaming. Your firm believes this squashes the First Amendment rights.

Barry Richard: Correct.

Andy Taylor: So, how do you answer that? What will you be able to bring up in court to defend or I guess take Department of Justice to task.

Barry Richard: I don't believe that the burden lies with my client. I think the burden lies with the government. Any time the government takes action which has a chilling effect upon free speech, commercial or otherwise, the burden is on the government to meet certain clear criteria that have been set forth by the United States Supreme Court and lower courts and that's their burden. And all we have to do is bring to the attention to the courts the fact that the government has made a threat that has a chilling effect on free speech and then the burden is theirs.

Now the reason that we believe they cannot meet the burden is because the advertising that our client is carrying is legal advertising. It does not seek to cause people to engage in any illegal activity anywhere. The government has no substantial interest in stopping us from doing it. They cannot stop people from engaging in illegal transactions by interfering with our right to run legal and constitutionally protected free speech. We don't think that the methodology that they've threatened is narrowly tailored to accomplish whatever purpose they think they have. That's the criteria that they have to meet under the First Amendment to the United States Constitution to curtail our free speech.

Andy Taylor: Has there been any cases in your research yet by the DOJ against media outlets for running advertising?

Barry Richard: Not that I'm aware of. But they have made, as you know, widespread threats of bringing action.

Andy Taylor: Yes, absolutely. Any idea on the impact that this has caused on, or some of the other online gaming sites out there, as far as lost revenue because it is not able to attract the potential number of people to come into its sites?

Barry Richard: I have no first hand knowledge of business that's been lost but I have been informed by our client that the client is aware of a number of major portals that have discontinued taking advertising because of the fear of the consequences generated by the threats from the Department of Justice. And our client also has informed us that they are aware of business that has been lost by advertisers that have been fearful because of that which is exactly what the First Amendment is designed to protect you from; the chilling effect of those kinds of threats upon the willingness of people to engage in free speech.

Andy Taylor: So now what happens? Will this go to a court or is this something you're waiting to hear an answer from the DOJ on?

Barry Richard: Well, it's already in court. It's been filed in the federal court in Louisiana. The Department of Justice has 60 days to file a response. They can file one sooner if they would like to, but they must file one with in 60 days. Then it proceeds from there through the motion and discovery process and eventually to a determination.

Andy Taylor: I really love what the press release we got said: "When Barry Speaks, we know the judge hearing our case will listen." That's why they hired your firm because you have experience working with the federal government and trying to get them to hear cases or hearing legislation.

Barry Richard: Well, I didn't see that press release, but I'm flattered.

Andy Taylor: Well it is good stuff. This is a good thing. Again, you're trying to get it so that these people can conduct business and make some money and of course, help the bottom line of this country.

Barry Richard: Well, I agree with that, but I also think there's an even greater overarching issue, which is the issue of free speech. Of course, everybody has the right to make money legitimately and that's an important aspect of a free enterprise society, but even more importantly, we all have the right to exercise free speech so long as we do it in a fashion that's legal and that's not injurious, and that's what my client is doing.

Andy Taylor: Very good.

Barry Richard: I don't know, by the way, it's possible and hopeful, so far as my client is concerned that the Department of Justice will say "We didn't mean to threaten organizations that are engaged in the type of advertising that your client is," and that would be fine with us. It would clear the air for those people who have been and would like to continue to do this. So that is a possibility.

Andy Taylor: So that could happen and if it does happen it would happen within the 60 days.

Barry Richard: Probably.

Andy Taylor: Well, we're going to keep our eye on this and see what happens. I want to thank you for spending a little time out of your very busy day to talk with us about this Barry.

Barry Richard: You're welcome.

Andy Taylor: Very cool. Thank you again.

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