Abstract
It is not actual suffering but the taste of better things which excites people to revolt.
O
But in many ways, this was lightning out of a clear sky, an overturning of a social status quo that had endured since the founding of the Republic. For the lawmaker in question was California Assemblyman Marc Levine of San Rafael, a notoriously liberal suburb of notoriously permissive San Francisco. The bill in question was a measure to license and legalize daily fantasy sports (DFS) within the state, and the assemblyman cast the only negative vote. 1 Who aired the ads? The Fantasy Sports Trade Association (FSTA), whose members include DFS giants FanDuel and DraftKings. 2
But the most remarkable part was the content and tone of the advertisements. There was no hint of apology, no earnest reassurance that the well-known evils of gambling were being diligently guarded against. There was no public spirited promise of the benefits DFS regulation would confer via increased tax revenue. Rather the wording was assertive, even aggressive. DFS players, the spot stated, were doing nothing wrong and had every right to engage in DFS play if they were so inclined. It was Assemblyman Levine who was wrong to allege that DFS was in fact gambling, and therefore forbidden. Maybe it was time for him to go.
This was a complete departure from what the gaming industry usually says regarding gambling legislation and regulation, at both the state and federal levels. What had changed, and why?
The Old Order
Gaming, especially gambling, has traditionally been viewed with a wary eye by governments in every time and place. First, it is a source of power. Playing games turns out to be quite a serious business. Games, in the sense of manipulation of recognized symbols, form the basis of such bedrock social institutions as churches and courts. They all owe their origins to simulations, to actings-out for social purposes. The very power of such specialized actors as judges, clergy, or police arises from their voluntary assumption of artificial personas and roles, played out to a conclusion according to peculiar rules, valuable to society even though they produce nothing tangible. In short, they are playing the approved games. 3 So it turns out that controlling which games are played, and when, is a serious matter.
Next, games are subject to inspection and control because they are a source of pleasure. Codes that control private pleasure as well as public behavior are part and parcel of every culture and civilization ever known. Perhaps this trans-societal norm is best described by the renowned neurophysicist, Dr. David Linden:
Our legal systems, religions, our educational systems are all deeply concerned with controlling pleasure. We have created detailed rules and customs surrounding sex, drugs, food, alcohol, and even gambling. Jails are bursting with people who have violated laws that proscribe certain forms of pleasure or who profit by encouraging others to do so.
4
Gambling in particular invites attention not only because it can turn into an addictive behavior for some, but it also affects social stability. Gambling winnings and losses can involve sudden and unpredictable transfers of wealth. This was a primary reason behind England's Statute of Anne in 1710, which protected the landholding aristocracy by making gambling debts uncollectible in court. The philosophy persists in U.S. common law to this day, at least for gambling not licensed by the states themselves. 5
But the real onus against gambling, particularly in Western Europe, was not the violation of any statutory law or social norm. It didn't matter that there were some who could handle gambling and some who couldn't. It didn't matter that gambling made some rich and others poor. Gambling was (and in the minds of many still is) not just illegal, but immoral. A sin, in short. And while sin might be tolerated or overlooked here and there, nobody has a right to sin. This belief was universally held, or at least very seldom contested, until very recently. Pursuant to a state's power to protect its citizens from harm, because gambling could sometimes lead to harm, it could be disposed of under that police power—anything from licensing to outright prohibition. 6 There was (and still is) no such thing as a legal right to gamble. Furthermore, not only did gambling involve no constitutionally protected rights, but activities related to gambling, such as advertising, could be placed under interdict at will. 7
A Parade of Paradigm Shifts
But this state of affairs was unhinged by the combination of social and technological change.
On the social front, gambling benefitted from an increasingly tolerant view of individual morality, and how far the government should control private pastimes. What has been called the Third Wave of American gambling began with the Great Depression of the 1930s. In need of revenue, but cautious about raising taxes, 21 U.S. states moderated their official opposition to gambling to allow pari-mutuel betting at licensed racetracks. Nevada went so far as to legalize casino-style gambling as well. As attitudes toward public morality and private amusements liberalized, other states permitted bingo for churches and other charitable institutions throughout the 1940s and 1950s. 8
But it was New Hampshire's reintroduction of a state lottery that put gambling expansion in the USA into high gear. Lotteries had been taboo in the United States since the Louisiana Lottery Scandal of the 1890s. But once New Hampshire's offering had been shown to be both honest and successful, other states hurried to follow suit. Today, 45 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico sponsor lotteries of their own. 9
Well, if lotteries could be brought back, and pari-mutuel betting was already here, why not other forms, particularly casino gaming? New Jersey legalized casinos in 1976. The Indian Gaming Regulatory Act 10 solidified the rights of Native Americans to do the same in 1988. By 1991, casino gambling in the form of riverboats had penetrated as far as conservative Iowa. As of this writing, 28 states have Indian gambling; 11 nine have state licensed casinos; 12 44 states plus Puerto Rico authorize pari-mutuel bets on horses, dogs, and men (jai alai); 17 states allow telephone bets from homes and offices; gambling-equipped cruise ships dock at 10 coastal states; and gambling riverboats line the banks of six more. And all but three states have charity bingo. All told, 48 of the 50 states today authorize some form of commercial gambling. 13
An additional and very crucial difference between today's gambling regulation and previous eras is that now gambling is not merely licensed or tolerated, but deliberately encouraged and promoted as a conscious government policy, particularly in regard to state lotteries. This goes a long way toward weakening the traditional argument that government must protect the people against the harm that gambling brings in its wake. If it is such a harm, then why is the state seeking to inflict that same harm on its residents? How can gambling be a sin and a crime per se when the states not only authorize but actively support it? A secondary argument, especially as regards online gaming, is that state regulation and supervision of gambling is necessary, lest its citizens be fleeced by unscrupulous operators located out of reach. This might have some validity regarding unlicensed sites operating abroad, but it quickly fades when regarded from a domestic point of view. There is no reason to think that the regulators of, for example, New York are less diligent or effective than those of New Jersey or Delaware in supervising gaming online.
In any case, the very idea that government should intervene to prevent individuals from making “wrong” choices is very much in decline. Laws that once criminalized formerly unmentionable acts—abortion, 14 homosexual intimacy, 15 and even animal sacrifice, 16 to name a few—have today all been overturned as insupportable infringements upon basic rights. In this context, to maintain that gambling is an evil that must be controlled if not banned altogether, appears, to be charitable, anachronistic.
The combination of technical progress and liberalized social mores has given birth to new attitudes, including attitudes about gaming and gambling. The millennial generations now coming to the fore grew up in a different world than their baby boomer parents and grandparents. Today's college graduate has never known a world without worldwide instantaneous telecommunications, cell phones, the Internet, and lottery tickets available at practically every gas station and grocery store. He is used to conducting much of his social life, and his business life, too, via smart phone apps and social media. 17 The older generations may have been used to the idea that gambling was a naughty treat, presided over by Frank Sinatra and friends in special enclaves like Vegas. But for our graduate, Frank Sinatra has always been dead. The idea that gambling is so special, so uniquely hazardous, that it should be confined to particular times and places makes little sense to him. Since the influence of religion in the public discourse has been steadily fading, the idea of gambling as a sin to be avoided has largely lost its deterrent effect. In fact he may hardly have heard of it.
Moreover, our graduate is much more trusting than his elders about dealing with strangers online.
As of 2012, one in five Americans has made a charitable contribution online, and about half that many have done so by using text messaging from their mobile phones. 18 While at present, online giving represents less than 10% of the United States' total charitable contributions, it continues to grow at double digits. 19 This easy-going attitude extends to amusements as well. A millennial player can and will put down hard cash to play for what are essentially bragging rights on leader boards and so forth, and both give and accept “prizes” that are no more than online icons: a virtual “box of chocolates” or “bouquet of flowers.” 20
Presumption of Liberty
But perhaps the greatest difference between our young graduate and his elders is that the graduate is much more likely to put into practice what is called “the presumption of liberty.” That is, if something is not forbidden, then it is permitted, and he can do that something if he feels like it. He does not have to ask permission first. On the contrary, if the authorities wish to prevent him from exercising his discretion, they must prove that there is just cause to do so.
Today, when our graduate may affirmatively exercise his discretion in such formerly taboo areas as sexual preference, drug use, and travel to formerly “enemy” countries, why, he asks, should his gaming and gambling choices be ringed about with regulation and restriction? So he doesn't ruin himself gambling? If he needs protection from himself so badly, then why is he perfectly free to engage in much chancier, bigger bets, in the form of day trading or commodities markets online? Or even vote?
What is missing from the young graduate's view of gambling, online and off, is the presumption of guilt. His fathers and grandfathers approached gambling with the understanding that it was a disreputable pleasure only. There was no right to gamble. The gambler and the gambling business were both “in on a rain check”: operating completely at government sufferance, under a tolerance that could be withdrawn at any time. After all, gambling was not merely a crime, it was a sin. And in the American view, sinners, as H.L. Mencken observed, have no rights that anybody is bound to respect. 21 Restrictions? Fines? Even jail time? You probably had it coming. And for generations, acceptance of this semi-pariah status formed the basis of the interaction between the gambling industry and the rest of society. Even where their own direct interest is affected, gamblers, up to now, have made few, if any, attempts to organize and represent those interests to their elected officials. At a recent conference attended by this author in Sacramento, a California legislator gave the stark numbers: even though hundreds of thousands of Californians gamble online, almost none had contacted state representatives in favor of it. In fact, as the lawmaker related, of almost 50,000 e-mails he typically received during any given year, less than 50 had anything to do with Internet gambling.
But here again the millennials break with tradition. Ubiquitous social media enables our graduate to instantly air his views, not just to those in charge but to the world at large. This has led to the rise of what is called “clicktivism”—social and political activism via social media and the Internet. 22 One of the most far-reaching consequences of universally available communications in the form of smart phones, Twitter, Facebook, Snapchat, and suchlike has meant democratization of expression in a very concrete and effective form. Anyone can join in, any number can play, and there is even a degree of anonymity given by the pen names contributors choose to appear under. As noted Internet commentator Clay Shirkey put it, large-scale coordination of such things is no longer an institutional monopoly. 23 Petition drives, organizing for a cause, protests, boycotts, even fundraising, can all be conducted via social media and the Internet, at a fraction of the time and effort once needed to arrange such things. The most notable recent example was the so-called “Arab Spring” which began in 2011 and spread across much of the Middle East, easily circumventing all but the heaviest attempts at suppression.
Like Internet marketing, clicktivism operates personally, instantaneously, and spreads virally, until today even popes and presidents keep social media accounts. When they want their commentary or opinions to be disseminated immediately, twitters and hashtags have now drawn even with, if not overtaken, such traditional tools as press releases. In the aforementioned California advertisements, for instance, press and television were not employed. Just Internet and radio were used. Why? Because the target audience does not watch much TV or read many newspapers. They are constantly online, however, and liable to have a radio on in the car.
A Big Step
And it works. Compare the new and rather radical Fantasy Sports Trade Association ads with the more traditional approach taken by the Poker Player's Alliance (PPA), an early pioneer in pro-gaming advocacy. PPA employs the time-honored tactics of the establishment. Its board features seasoned political veterans such as Alphonse D'Amato of New York. It organizes letter campaigns (e-mail, true) to lawmakers. It advocates new legislation and legal reform favorable to its cause, specifically online poker, funding these efforts through a special PokerPAC (political action committee). Its officers and spokesmen testify at legislative hearings, and support court cases to overturn statutes and precedent that restricts poker play, particularly online. 24 Worthy efforts all, but all conducted squarely within the system, and subject to systemic roadblocks. Letters can be ignored. Legislation can be stalled in committee. PACs can be outspent. And convincing state and federal courts to overturn the existing state of affairs is an uphill battle at best. FSTA's approach, by contrast, is quick and direct. Straight for the jugular, in fact: their message is not to the lawmakers, “kindly consider this,” but to the voters, “turn the bums out.”
To be sure, traditional advocacy groups such as PPA have done very important work in advancing the idea that gambling is not necessarily beyond the pale—it can, in fact, be respectable. It is on this basis that newer participants such as FSTA are building their case—the further point that gaming and gambling customers and operators ought to be respected rather than condemned out of hand. It is an extremely significant development, and a real boost to the gaming industry and its customers, online and off. Finally, it would seem, gamblers and gambling are getting off their knees.