New Hampshire Lottery Commission v. Barr

The Wire Act, 18 U.S.C. § 1084(a), contains a two-clause prohibition on certain gambling-related conduct. The first clause prohibits using a wire-communication facility “for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.” The second clause prohibits the transmission of a wire communication entitling the recipient to receive money or credit as a result of bets or wagers. In 2011, the United States Department of Justice’s Office of Legal Counsel (OLC) opined that interstate transmissions of wire communications unrelated to sporting events or contests were beyond the scope of the Wire Act’s prohibitions. The OLC concluded that the phrase “on any sporting event or contest” in the first clause applied to transmissions of both bets and wagers and information assisting in placing bets and wagers. The OLC further concluded that “on any sporting event or contest” also applied to the reference to bets or wagers in the second clause. However, in 2018, the OLC reversed itself and issued an opinion stating that the Wire Act was not strictly limited to sports gambling. The OLC reasoned that “on any sporting event or contest” applied only to the transmission of information assisting in placing bets or wagers and not to the transmission of bets and wagers themselves. The OLC further concluded that “on any sporting event or contest” did not apply to the second clause. Federal prosecutors were directed to begin following the OLC’s 2018 opinion after the expiration of a brief grace period. The New Hampshire Lottery Commission (the commission) (plaintiff) offered lottery games that used interstate wire communications. After the OLC’s 2018 opinion, the commission became concerned that lottery sales would need to be suspended to avoid violating the Wire Act, depriving New Hampshire of $90 million in revenue annually. The commission sued United States Attorney General William Barr (defendant), seeking a declaratory judgment that the Wire Act was limited to sports gambling. The parties cross-moved for summary judgment.