In Virginia, a hearing is scheduled for Monday, December 5 in Greensville County Circuit Court, when retired Judge Louis R. Lerner is expected to rule on a lawsuit brought by Virginia truck stop owner and former NASCAR driver Hermie Sadler against the ban on skill games, which the state passed in summer 2021. Sadler and his attorney, state Senator Bill Stanley, said the state’s ban is too broad and is an attack on smaller local establishments that compete with large gambling operators building full-blown casinos in the state. The slots-like games are proliferating in truck stops, sports bars and convenience stores statewide.
Skill-game supporters claim the state’s ban is a violation of free speech, as it targets certain games because of their aesthetic resemblance to slots. The state argues the games are not a form of expression protected by the first amendment. Furthermore, the state claims, the ban is against the betting activity, not the actual games. Also, the state notes the illegal skill games challenge its efforts to maintain a legal and regulated gaming industry. In addition, unregulated skill games risks offer no protection to Virginians who playing the machines.
Consultant Mark Nicely, a gambling expert hired by the state to help defend its skill-game ban, said, “If players COULD readily beat the game, then one should expect that they WOULD be doing so regularly. However, the fact that these machines are reported to generate tremendous profits for their operators speaks to their inability to be beaten by human achievable skill.”
Nicely noted the skills required to play the games are either so minimal a toddler could beat them or so advanced players would require superhuman skills to consistently win.
Speaking against the skill-game ban, I. Nelson Rose, professor emeritus at Whittier College, stated it turns “the history of the control of gambling on its head” by criminalizing a lot more than lawmakers intended. Rose said, “The reach of the new law is enormous. Virtually every game, both in the real world and online, would be outlawed.”
Sadler attorney Stanley, a recognized free-speech expert, who’s also working with the state’s main skill-game company, Queen of Virginia, said the General Assembly’s 2022 budget amendment banning skill games was a rushed and non-transparent. In a November 14 filing, Stanley wrote, “The public should not be expected to read hundreds of pages of the budget bill over the Memorial Day holiday in order to determine what new crimes the General Assembly is considering. Nor should the public be surprised by such new crimes becoming effective 10 days after being signed by the governor.”
Attorneys for the state said gambling policy is relevant to the state budget because efforts to create a regulated gambling industry directly impact state tax revenue. Assistant Attorneys General Erin McNeill and Calvin Brown said, “Gambling is germane to the budget. Furthermore, it is simply good public policy to allow lawmakers to cure a potential constitutional defect in a previously passed statute, even if that good medicine is delivered in an amendment to the budget.”
However, Rose noted, the state is confusing a skill versus chance distinction. He said early machines were once considered a form of illegal gambling until makers added player-controlled flippers, which made them games of skill. “Different people have different levels of skill. One person may be better at golf than another. It may be virtually impossible for some of us to play a round of golf under par, but that does not mean that golf is not a game of skill.”
The case originally was set for a May hearing, but that was moved to early November due to the assumption, which proved correct, that the General Assembly would use the state budget process to make the ban even more tough. Then the November date also was pushed back, leaving the machines completely unregulated until the next General Assembly session convenes. Observers said Stanley, as a sitting lawmaker, could postpone court dates.
