Minnesota Legislature Interprets Federal Law to Allow States to Block Internet Gambling Sites, Raising First Amendment Concerns

A recent order by the Minnesota Department of Public Safety, which would block access of residents to a list of gambling websites, has come under criticism for infringing upon First Amendment rights. The State of Minnesota published a seven page list of internet gambling web sites, which it then distributed to Internet Service Providers operating within the state and ordered the ISPs not to provide access to the listed sites. The order to blacklist the websites came on the legislature’s interpretation of a Federal law, stating the law “requires upon notice of a law enforcement agency that you do not allow your systems to be used for the transmission of gambling information.” Further, gambling is illegal in the state of Minnesota.

The Federal law referred to by the Minnesota Department of Public Safety, however, explicitly states that a “common courier” must discontinue its services for the transmission of gambling information. Both the Supreme Court of the United States and the Federal Communications Commission (“FCC”) have suggested, however, that cable and DSL providers do not fall into the category of common carriers; therefore, the Federal law cannot apply to them.

Similar legislation was enacted in Philadelphia in 2003, ordering ISPs to block access to possibly illegal websites. The law was intended to reduce production of child pornography. Nevertheless, a Federal Judge ruled the law unconstitutional on First Amendment grounds in 2004. The Judge stated there was a massive infringement on First Amendment protections on speech, which far outweighed the little evidence that the legislation was in fact successful in reducing child pornography. Part of the reasoning for ruling the legislation unconstitutional was that many internet sites share IP addresses with other sites. Blocking the IP address of a gambling or otherwise illegal website would also block access to legal sites which share the IP address. It would seem clear that under the same reasoning, Minnesota’s legislation will too be overturned; one particular site listed as an illegal gaming site shares an IP address with a corporation website.

The Constitution of the United States is often referred to as a living and breathing instrument, in that it is continually interpreted over time. Constitutional amendments are more intricate than they may seem on their face, often having been ruled (and overruled) upon by case law. Understanding the intricacies in the Bill of Rights requires the assistance of an experienced attorney, who has access to the latest changes in legislation and precedential court decisions. The Law Offices of Marc Neff will provide you with not only an understanding of the law, but how it can be applied to your case. For a confidential consultation, please call (215)563-9800, or e-mail Marc@nefflawoffices.com.