Out of Its Shame Over Gambling, VA Legislature Prohibits Certain Speech
One of the many new Virginia laws that took effect on July 1st is SB 96 (R-Norment), which prohibits gambling businesses in Virginia from using the phrase “Virginia is for Bettors” (presumably, a play on Virginia’s tourism motto “Virginia is for lovers”) in advertising their products or services. A violation is subject to a civil penalty of up to $50,000. Now, that is quite an odd law for the General Assembly to pass, is it not?
On its face, this statute appears to be blatantly unconstitutional as violating free speech guarantees, and for that reason alone, this is a troubling development. Virginia’s own Bill of Rights states: “That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech….” Va. Constitution, Art. I, Sec. 12
However much one cares about this particular law, we must ask the logical question: If the government can pass a law saying that certain people or entities are not allowed to speak certain phrases or ideas in public – in particular, ones which have nothing to do with basic standards of decency, such as swear words, and that are not otherwise misleading or endangering to the public – then what could prevent that same government from prohibiting the publishing of any other phrase or idea? What would stop that government from, say, telling businesses that they were prohibited from including in their advertising the phrase “Jesus loves you”?
Unfortunately, that very question is not merely hypothetical, as right now in Virginia, a Virginia real estate agent has had her state-issued license effectively suspended by the Virginia Real Estate Board because she included the words “Jesus Loves You” and “With God all things are possible” in her professional email signature and on her business card. That has led to a protracted legal battle that is still ongoing, and is based on a Virginia fair housing law that prohibits real estate professionals from including any expressions of religiosity in any of their advertising materials. According to Va. Code § 36-96.3 (Unlawful discriminatory housing practices), “The use of words or symbols associated with a particular religion . . . shall be prima facie evidence of an illegal preference” in housing.[1]
To be fair, there is a constitutional concept, developed over time, known as the “Commercial Speech Doctrine”, which allows a state to prohibit certain speech by commercial entities that it can’t regulate for individuals, including advertising that is misleading or if experience demonstrates that the advertising is subject to abuse. In re R.M.J., 102 S.Ct. 929, 937 (1982). However, generally if the content of the advertisement is not misleading, the state may regulate commercial speech only when 1) there is a substantial government interest is at stake, 2) the regulation directly advances that interest, and 3) the regulation is no more extensive than is necessary to serve that interest. Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
But here, it’s hard to imagine a plausible reason – let alone a “substantial government interest” – for the General Assembly to pass this particular prohibition on speech (i.e. “Virginia is for Bettors”), except that a majority of state representatives would apparently feel embarrassed if suddenly the historically lofty and genteel Commonwealth of Virginia was to become commonly and colloquially known for being a state devoted to gambling, of all things. Frankly, it’s unsavory. It’s neither praiseworthy nor something to feel proud about, let alone something to be widely known for. And who could blame them for feeling that way about our beloved Old Dominion?
Given the context, it seems obvious that the legislative and executive branches feel some semblance of shame about being commonly associated with the shady/seedy/carpet-bagging (pick your adjective) gambling industry that they craftily allowed to infiltrate and overrun nearly every corner of the Commonwealth in a matter of a few years’ time, and that is certainly understandable. Why else would they care that much about some gambling licensee advertising somewhere with a slogan about Virginia being for bettors? Nevertheless, that shame alone cannot justify their decision to proscribe certain [non-trademarked, non-misleading, and non-obscene] phrases from being spoken into the marketplace.[2] Even unsavory and potentially embarrassing speech is guaranteed constitutional protection.
Despite the legislature’s understandable intent to prevent further tarnishing of Virginia’s waning reputation among its fellow states, this is still a bad law in principle. We should see it for what it is: a state restriction on speech that will make it easier for the state to justify even more restrictions on speech. Once again: “the General Assembly shall not pass any law abridging the freedom of speech…” (Va. Constitution, Art. I, Sec. 12)
[1] Note also: Va. Code § 54.1-2409.5 – passed in 2020 – audaciously [and unconstitutionally] prohibits licensed counselors from using talk therapy to help anyone under 18 overcome their unwanted feelings of same-sex attraction, or even to simply help them align their psycho-social distress over their gender with their actual body.
[2] Though, by no means should the gambling industry, which is largely a scheme of government-granted winners/monopolies, be confused with an actual “free market” – and that’s why you can “bet” not a one of them is going to bite the hand that feeds them by challenging this bad law.
