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Video sweepstakes ruling plays loose with First Amendment

RALEIGH — Almost a year ago, I concluded that Judge John Craig’s contorted legal logic might yet show that gambling is knitting.

I apologize. Gambling apparently is free speech.

Craig, a Guilford County Superior Court judge, recently ruled that a new state law banning most types of video sweepstakes machines could go into effect as scheduled on Dec. 1.

The ruling upheld the bulk of the new law, which was largely the result of an earlier decision by Craig that opened the door for video poker operators to claim that their video Internet sweepstakes games weren’t really video poker.

Video games enumerated by the law — card games, bingo, keno, craps and the like — which are tied to prizes could be banned, he said.

But the judge concluded that another portion of the law banning “any other video game not dependent on skill or dexterity that is played while revealing a prize” is an unconstitutional restraint on free speech.

Interestingly enough, the same language has been used for decades to ban non-video forms of gambling.

The ruling prompted outgoing state Rep. Melanie Goodwin of Richmond County, one the North Carolina legislature’s most vocal critics of video gambling, to conclude that Craig had insulted the founders who drafted the First Amendment.

“According to the Court’s logic, video sweepstakes is ‘freedom of expression’ in the same way that prostitution is ‘freedom of assembly,’ ” Goodwin said.

The ruling might not only prove fortuitous for prostitutes. Bank robbers, at least those in Guilford County, could benefit too.

“You see, judge, when I whipped out that .357, I was just exercising a little freedom of expression. And I know you wouldn’t hold that ‘Gimme all your money’ thing against me. Those words are constitutionally protected, you know.”

It’s not exactly clear what Craig’s decision will mean for the video sweepstakes parlors that have operated largely unregulated since his 2008 ruling.  Machine owners are surely studying the decision to see if it provides enough wiggle room to try to modify their games and continue their legal wrangling.

What is certain is that the elected representatives of the people of North Carolina have sent a clear signal since 2006 that they want the games shut down. The latest law is the third time in five years that state legislators have passed a law banning video poker and its various mutations.

As Craig’s ruling shows, legislative intent doesn’t seem to be real high on some judges’ radar.

The lack of consideration is understandable when lawmakers’ intent clashes with the state or federal constitution. In this case, the clash seems contrived. Turning gambling into a First Amendment right amounts to legalistic gymnastics of the highest order.

And eroding the ability of state government to regulate gambling is irresponsible and reckless.

Or, perhaps a certain judge would enjoy working weekends to deal with the additional crime associated with unchecked, unregulated gambling.

Scott Mooneyham writes about North Carolina politics for the Capitol Press Association.

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