by Hillary LaClair, Senior Editor
December 16, 2008
An early decision is anticipated in iMEGA’s lawsuit recently brought before the Kentucky Court of Appeals. A panel of three judges was said to be well prepared for the oral arguments on Friday against the seizure order of 141 internet casino gambling domains. The panel has begun to deliberate, but no official release date has been set for the final decision.
The Internet Media Entertainment & Gaming Association’s legal team challenged the constitutionality of the seizure order. According to iMEGA’s website, the prosecution “improperly tried to create a hybrid of criminal and civil laws to justify seizing the domain names,” denying domain owners the right to due process.
“It is not sufficient for the state or lower court judge to decide on their own that there is a criminal violation,” said lead attorney for iMEGA, Jon L. Fleischaker. “They don’t like this (online casino gambling)…so they seized the names without hearing or process.”
Those present during the 50 minute-long hearing said that the panel were eager to listen, asking several relevant and “probing” questions of the organizations involved. The appeal follows a prior ruling in the Franklin County Court wherein Judge Wingate set what some feel is a dangerous precedent for the industry. Many online gambling advocates, including iMEGA, have argued that the State has no jurisdiction over internet domains that reside overseas.
Associated Press said that William Johnson, representing five of the websites in question, claimed that the State does not have a law which specifically gives them the authority to seize domain names. No revisions have been made since 1974.
“If they had wanted to correct this law, they could have done so annually,” he said. “That is a matter for the legislature to decide.”
Fleischaker has also called attention to the US 6th Circuit’s definition of domain names - having ultimately decided that they are no more than billboards. He noted that the Horseshoe Casino in Indiana was able to advertise in Kentucky, despite the fact that gambling is illegal in the State. This of course is due to the First Amendment rights, or more specifically the right to free speech and expression.
Fleischaker compared the domain seizures to the seizure of a billboard, saying, “That is classic prior restraint.”
Additionally, the argument was presented that the Commonwealth has not clearly defined the “gambling devices” in question.
iMEGA chairman was pleased with the hearing. “Clearly our attorney and lawyers representing the other groups were excellent,” said Joe Brennan Jr. “They were very comfortable with the give-and-take with the judges, and had a command of these important issues. We’re very confident that we will prevail in this matter and put a stop to this dangerous precedent being set by the governor with this action.
“This matter has generated concerns across the online world about the abuse of governmental power. Kentucky is opening the door for any government – state and local, foreign and domestic – to use what amounts to blackmail to achieve its ends. If this precedent is allowed to stand, it’s not hard to imagine a government like China, utilizing this kind of seizure power to prevent free media, like the New York Times, from reaching their citizens.”