ACLU, bar owners sue W.Va. over limits on gambling ads
Vicki Smith
The Associated Press
Wednesday February 28, 2007
MORGANTOWN -- The American Civil Liberties Union and a group of video poker bar owners are suing the Lottery Commission, arguing a three-year-old law limiting the words and images used in gambling parlor advertising is unconstitutional.
The complaint, filed Tuesday in U.S. District Court in Charleston, asks a judge to deem the 2004 state law that bans the use of such words as "casino,'' "chance,'' "dollar'' and "dough'' a violation of the First Amendment right to free speech.
It also asks the court to overturn sign and other advertising restrictions on the 1,679 clubs that now run 8,175 machines in cities and small towns statewide.
Fraternal organizations can operate 10 machines per location under state law, while other private clubs can have five apiece.
Andrew Schneider, director of the West Virginia ACLU, said the law also violates the equal protection provisions of the 14th Amendment because the state's four racetrack casinos are allowed to advertise thousands of slot machines with few restrictions.
"The fraternal organizations cannot, so obviously, these regulations are discriminatory,'' he said.
Although Lottery officials can regulate the so-called limited video lottery parlors under state law, they "should not be in the business of hiding information from the public,'' said Roger Forman, a lawyer for the West Virginia Association of Club Owners & Fraternal Services.
"West Virginians are perfectly capable of making their own decisions about gaming, based on truthful information about what's available to them,'' he said in a prepared statement. "There are other ways to address concerns about gambling without muzzling small business owners.''
Schneider said states can regulate commercial speech, but legislators and Lottery officials should not decide which messages are vital.
"The speaker and the audience -- not the government -- assess the value of the message,'' he said. "That's what's at the heart of the case. In a free system like ours, government should not intervene.''
Lottery spokeswoman Libby White did not immediately comment on the complaint, which names the commission and Director John Musgrave. She said Musgrave and the commission's attorney were at the Capitol on Tuesday and likely had not seen the lawsuit.
The West Virginia ACLU filed the lawsuit with the club owners' group, which represents bars, restaurants and fraternal organizations licensed to run the machines.
Two other gambling groups -- the West Virginia Amusement and Limited Video Lottery Association, and the West Virginia Limited Video Lottery Retailers Association -- said they did not know about the lawsuit and are not parties to it.
In October 2003, then-Gov. Bob Wise signed an executive order prohibiting bars, clubs and fraternal groups from using "casino'' and about 200 other gambling-related words and images when advertising the video poker games.
The following year, legislators formalized the ban.
The 2001 Limited Video Lottery Act allows for 9,000 video poker machines in bars, private clubs and other adult settings across West Virginia. Wise pushed the legislation as a way to eradicate similar "gray machines'' that had operated for years without regulation or taxation.
But as the licenses were sold, the new clubs began changing the landscape, with many declaring themselves "casinos'' on flashy outdoor signs that included billboards along highways.
Wise's list of banned word and images included any possible reference to playing cards, gambling games, slot machine symbols or poker hands. Other banned wording includes known casino destinations, such as Las Vegas or Atlantic City, or any names of casinos, including the MGM Grand or the Tropicana.
Other off-limit words include "game,'' "hit,'' "kitty,'' "luck,'' "lucky,'' "money,'' "roll,'' "token,'' "wild'' and "winning.''
The ACLU said one bar owner had to fight the Lottery to allow him to use the word "club'' in his business name because "club'' is also a suit of cards.
Patricia Pope, executive director of the Amusement and Limited Video Lottery Association, said her members have no complaints about adhering to the law.
"They're business owners and they want to do whatever it takes to be successful,'' she said.
In fact, the ACLU did not challenge the law earlier because it had no clients to do so. Schneider said the fraternal organizations "only recently approached us.''
Pope said the only way the advertising ban hinders her group is by preventing a public awareness campaign about the good the industry does -- employing more than 5,000 people, generating more than $1.5 billion in state revenue since 2002, and funding scholarships for 17,500 college students. |
