Lots of corrections on my March 11 post

by Lou on March 17, 2008

Sometimes you get things wrong, and when you do–as I did in my March 11 post–clarifying the situation is the best course of action.

Robert Woolley, who blogs as Poker Grump, had this to say after reading my blog

“I saw your recent blog post about the iMEGA case. I think you got quite a bit wrong, factually. I put up a rather extensive and no-holds-barred critique at my blog, see http://pokergrump.blogspot.com/2008/03/lies-and-confusion-about-imega-case.html. If you care to reply to my criticisms, I’d be happy to post whatever you have to say, or put up a pointer back to your blog if you would prefer to post about it there.”

He wasn’t the only one to contact me regarding my mischaracterizing Judge Mary L. Cooper, of the U.S. District Court for the District of New Jersey, as a “Supreme Court Justice.” Dunno what I was thinking, but I got it wrong, and I’d like to thank everybody who caught that error and took the time to notify me about it for keeping me on track.

Poker Grump had a lot to say about the spin iMEGA put on Judge Cooper’s decision. Here’s some of it:

“The first–and quite possibly last–major decision about the case was issued on March 4. You can read it here: http://www.imega.org/wp-content/uploads/2008/03/imega-v-gonzales-et-al_3608.pdf. Here’s the Reader’s Digest condensed version: The government attempted to have the case dismissed first because, it said, iMEGA had no legal “standing” to bring the suit. To oversimplify, in order to bring a lawsuit attempting to prevent enforcement of a criminal statute, you have to show that you are actually in potential danger of being prosecuted under it. iMEGA defeated the government’s argument on this point; the judge found that the association did, in fact, have sufficient standing to challenge the law, because “a plain reading of the UIGEA reveals that its prohibitions could easily apply to the to the actions of the plaintiff’s member businesses.

“But that was the end of their victories. The government next argued that even if iMEGA had standing, every one of their claims was legally invalid, to the point that they didn’t even need to have a trial to determine any disputed facts. The judge agreed with them down the line, on every item; every claim that iMEGA made about the alleged unconstitutionality or unenforceability of the statute was shot down decisively.

“It’s important, I think, to note the legal standard in play: For a motion to dismiss at this early point, the judge is required to assume that all of the facts claimed in the plaintiff’s suit are actually true. The legal question is, essentially, “Even if everything the plaintiff says is true, can they possibly win on the legal arguments?” Her answer was no. The case has been dismissed. iMEGA’s press release says that they plan an appeal, but I’d lay 10:1 against an appeal being successful, after reading the district court’s decision. The claims iMEGA makes are just horribly weak and implausible.

“(I suppose I have to add the disclaimer that I think the UIGEA is stupid and bad public policy. But that doesn’t mean that it’s unconstitutional, or that any lawsuit brought against it should, by rights, prevail, if the suit is based on bad legal arguments, as this one was.)

“Now let’s look at the incredible PR spin job that iMEGA does with this whopping defeat: http://www.imega.org/2008/03/07/court-grants-imega-standing-to-challenge-flawed-online-gaming-law/. First, they say that they “applaud” the decision. Well, that’s interesting, since they LOST. Their attorney spouts the nonsense that the standing portion of the decision is a “major victory.” Hogwash. Standing is not that difficult to establish. And it’s a purely pyrrhic victory if, after having standing acknowledged, you lose on every one of the merits of your case before you even get to trial.

“iMEGA’s press release next quotes their lead attorney, Eric Bernstein, as saying, ‘Judge Cooper’s ruling holds that, even with the passage of UIGEA, online gambling is only illegal in states where a statute specifically says it is.’

“No, it doesn’t. First, we need to make clear what it means when a judge “holds” something or other. That word means not that the judge made some offhand comment in the text of the decision, but that a question was squarely put to and decided by the court. Court decisions can be reduced to three parts: “findings” (where there are disputed facts, the judge decides which ones to accept and reject), “holdings” (substantive decision on the disputes as to the meaning or application of law), and “dicta” (everything else). There is simply no holding in this case anything like what Mr. Bernstein claims.

“As far as I can find, the closest the court came to any such statement is as a presumption (based on a plain reading of the statute) while making another point entirely, about whether the plaintiff’s First Amendment rights of free expression are hindered by the UIGEA: “The plaintiff has not identified, and the Court does not discern, any ‘communicative element’ inherent in the only conduct criminalized by UIGEA–the taking of another’s money…. Also, as UIGEA only has potential application if a bet or wager is otherwise unlawful where initiated or received, the plaintiff cannot claim any First Amendment protections for conduct–in accepting the funds for that bet or wager–that essentially facilitates another’s criminal act.” (Emphasis added.)

“If a non-attorney read this and said that it was a “holding” of the court that the UIGEA only prohibited conduct that was already illegal under relevant state law, I could easily dismiss it as a misunderstanding. But Mr. Bernstein knows full well how to distinguish a court’s holdings from its incidental statements. What he claims as the former is unarguably the latter. In short, he is lying through his teeth.”

It’s probably worth reading Poker Grump’s entire post. Though spins, like beauty, are probably found in the eye of the beholder, I’m thankful for Woolley’s note to me to correct my factual error and for his interpretation of what transpired in that case. Thanks, too, to everyone else who also emailed me with corrections.

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