The Interactive Media Entertainment & Gaming Association (iMEGA) just filed a brief with the US Court of Appeals challenging the constitutionality of the UIGEA on the basis of it being “void for vagueness.”
iMEGA had already filed a suit against the UIGEA in March of this year with mixed results: although Judge Mary Cooper (US District Court, Trenton) dismissed the claim, she conferred the necessary legal status upon iMEGA so it could appeal or file claims against UIGEA. Judge Cooper’s final ruling in March stated:
The plaintiff’s claims express a fundamental disagreement with Congress’s judgment that Internet gambling should be controlled legislatively, and pose questions as to whether UIGEA, given its exceptions and conjectural enforcement problems, will be successful in accomplishing its desired ends. But it is not the Court’s role to pass on the wisdom of a Congressional act or speculative on its effectiveness.
Taking a clue from Judge Cooper’s statement, iMEGA decided to directly challenge the constitutionality of UIGEA, basing its claim on the flaw that most of the UIGEA’s detractors have pointed out: its vagueness. Joe Brennan Jr., iMEGA chairman and CEO, explained the main gist of their claim on a press release in the iMEGA website:
UIGEA should be “void for vagueness,” in that Congress has not defined what an “unlawful Internet gambling transaction” is, as they are required. Congress cannot delegate that necessary determination as to what is “lawful” or “unlawful” to US banks and credit card companies. The Department of Treasury, which has been tasked with drafting the regulations for UIGEA, has testified before Congress that they themselves cannot make that determination. Because Congress refused to draft necessary standards, the law is so inherently flawed as to make it totally vague and unenforceable, and we are confident that the Court will overturn it.
According to Wikipedia, “void for vagueness” is applied to a statute if it is so vague that people “of common intelligence must necessarily guess at its meaning and differ as to its application.” To determine whether a law is void for vagueness, courts may ask the following questions:
- does the law give fair notice to those persons subject to it?
- does the law guard against arbitrary and discriminatory enforcement?
- can the law be enforced with sufficient “breathing room” for First Amendment rights?
To help the court answer those questions in the right way, iMEGA has invested in the best legal counsel they could afford: along with Eric Bernstein (lead counsel and noted First Amendment and Internet law attorney) and Edward Leyden (President and chief counsel for iMEGA) they recently drafted Stephen Saltzburg, Professor of Law at George Washington University and formerly Deputy Assistant Attorney General in the Criminal Division for the US Department of Justice and also Chairman of the American Bar Association’s Criminal Justice Section.
Leyden told Poker News Daily, “There is a point of departure from the approach were taking at the trial level. We’re now emphasizing the vagueness of the UIGEA. That’s the theme that runs through it and it’s unconstitutional because of it.”
