According to this link, some college buddies nabbed in a poker bust are asking a South Carolina judge to decide whether Texas Hold 'em is an illegal game of chance or permissible game of skill. Here is the text of the South Carolina criminal statute that appears to be at issue:
If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.
Apparently poker players have recently had some luck arguing that poker is a game of skill rather than a game of chance. This recent press release from the Poker Players Alliance says that a Unviersity of Denver statistics professor testified that poker is a game of skill, leading to a Colorado jury acquitting the organizer of a poker league.
I think the South Carolina defendants will have a harder chance escaping, as the law quoted above bans "any game with cards." Hard to see a game of skill defense given the plain language of the statute.
Related Posts (on one page):
- More on Is Poker a Game of "Chance"?
- Board Games,Textualism, and the South Carolina Anti-Gambling Statute:
- Is Texas Hold 'em a Illegal Game of Chance or Permissible Game of Skill?
Anyway, what an odd statute.
It depends where clause 'g' ends. If clause 'g' is "any machine or device licensed pursuant to Section 12-21-2720", then the "and" that immediately follows means that it would tie clause 'a', "any game with cards or dice" to "and used for gambling purposes..."
That would put the definition of gambling at issue.
From the plain language, players of bridge, pinochle, hearts, spades, euchre, and even Old Maid and War, are similarly subject to prosecution. Whist is the only legal card game.
Easier for the card players to lobby for a change in the law.
I particularly like this pretty phrasing: "or shall bet on the sides or hands of such as do game."
They might have an argument for selective prosecution.
How many of the court employees have solitaire and hearts on their computers? Also, I've never seen 'outhouse' used in a general sense like this.
It seems like there could be some sort of over breath argument . I don't see a rational basis for prohibiting games like Uno, and the chilling effect of the statute would put an end to family game nights across the nation...
I'm in euchre territory. A suggestion of playing whist gets you a "what the [bleep] is that" look, and a suggestion of playing bridge gets a "what the [bleep] is wrong with you" look.
The speculation was that hotel/bar managers simply wanted to be safe, and didn't understand the difference (or were worried that the law didn't understand the difference) between playing a boardgame and gambling.
Sk
What next? Banning ragtime music? We all know that Scott Joplin leads to drunkenness and fornication....
I guess, but if so, this is terrible drafting. Let's look at what happens if we drop extraneous language:
The phrase "and used" is the big problem. Without it, the law bans only gambling on card games, but with it in there, it becomes nonsensical.
If it's a game of chance - then Chris Moneymaker and other top Hold 'em players would be the luckiest humans alive. The chances of reaching to top table in a game of coin flips is astronomically low. To do it multiple years in a row is amazing.
Is Monopoly a game of dice? Is it illegal too? Are we limited to playing Chess, Backgammon, and other whitelisted games on that statute if we live in South Carolina?
Any game of cards seems overly broad to me, and any game of dice void for vagueness. But IANAL....
I'm trying to come up with a funny analogy or witty response, but I'm drawing a blank. So let me just say, Chris Moneymaker is widely considered to be one of the luckiest humans alive, and not one of the top Hold 'em players.
If two teenagers get together to play "Magic" (or some elementary kids play "Pokemon"), are they in violation of the statute?
The term "cards" is too vague and implicates our 1st Amendment right to self-expression. Playing games is a kind of self-expression. To say that we can't play Pokemon would infringe our free speech rights. The law should be challenged on its face for that reason.
Re: board games: monopoly is a game with cards and dice. Too bad these boys don't have a "get out of jail free."
Note the exception of billiards, bowls, backgammon, chess, and draughts. Then it says "or" where there is no betting on these specific whitelisted games. Then it says or where one bets on a side or hand.
I am very confused (regarding groups of modifiers) as to whether:
1) Playing chess is legal or illegal according to the plain text of the statute
2) Whether playing chess is only legal IF one gambles.
3) Whether playing chess is only legal IF one does not gamble.
4) Whether p0ker would be legal because betting on a hand would be an exception to the no-card-games rule (but playing solitaire on my kitchen table alone with no gambling would not).
All modern trick-taking card games are descendants of whist and might fall under the exemption.
You could intentionally lose a game of b1ackjack: draw to 22. I suppose the real inquiry is whether you could intentionally lose every time, which in b1ackjack you could not.
The "or shall bet on the sides or hands of such as do game..." is not part of the exceptions. It establishes a separate offense.
"If any person shall play at any tavern .... or shall bet on the sides or hands of such as do game..."
1) Playing chess is legal or illegal according to the plain text of the statute
Yes, I too am confused as to chess. Under which of the subsections (a)-(g) is it covered, so as to necessitate an exception?
It is played using neither cards nor dice. I am not familiar with all of the other categories - "faro", "rouge et noir", etc. - but quick google searches indicate that these are card games (in which case, why are they not included under subsection (a))?
Playing chess in a public place is explicitly okay as long as no one wagers on the result. The exception "except the games . . . as do game" carries back over (a) through (g) and places chess outside those categories. The exception itself contains the ban on wagering on chess.
It is never legal to play in a public place any card game that cannot be described as "whist."
It is rather humorous though, that a filter designed to keep out spam on a subject works so well that it is hard to discuss that subject when you really want to.
What grammatically makes betting one one side or hand under this statute different than not betting on chess?
I checked the actual statute page, and the legislature did not format the text to make it any clearer....
Why, in terms of text construction, is not gambling on chess permissible but gambling one a hand of cards a separate offence? For the life of me, I can't see it.
For those who are curious: "E and O" was a precursor to roulette - http://www.tradgames.org.uk/games/roulette.htm - and I assume so was an "A, B, C" table.
(Am I the only one who didn't know this? Are E and O tables common in Las Vegas or at Indian casinos or something?)
-- David
Spell it "p0ker"
So you have:
List of games you can't play, (a)-(g).
Except billiards, etc. are okay when there is no betting on that game of billiards, etc.
Plus you can't bet on any games (a)-(g) even if you aren't playing.
And here is what happens to you if you break the law.
No, from context here kitchen is an outbuilding, like a barn or stable. As I recall, in the South from colonial times, kitchens were separate from the house to avoid heating it up further during the summers.
I did find myself recently arguing about the difference between real P games, like TH, and all those P-like games (including BJ) that you find on the floors of the Cs (excluding, of course, the P rooms, where real P is played). In Nevada, at least, the fastest way to tell them apart is whether the games are in a "pit" on the C floor, or are in a separate P room.
Under Nevada gaming laws, one of the big differences is that in real P, you are playing against the other players, whereas in the P-like (including BJ) games, you are playing against the house, with house odds, etc. Not surprisingly, P-like games (including BJ) seem to be much more highly regulated than do real P games. One of the consequential differences is the type of bank that is required, since in real P, you aren't playing against the house, and thus you can't beat or lose to the house.
Seems like there are still a lot of places in SC where you can g4mble. I am going to open up a ca$ino situated entirley in a cave.
It doesn't strike me as a binary question - chess is purely skill, tossing a fair coin is pure luck, and other games are somewhere in between. I can't see a bright line test.
Further, I wonder if the player matters - if you are going through the motions of playing poker, but are betting based on how many red cards are in your hand, it's difficult to say you are playing a game of skill, while someone who consistently beats other players more than chance would allow must be exhibiting some level of skill.
Not surprisingly, I find (b) pretty ambiguous. It seems to me that (b) covers the following: (1) gaming tables of the type commonly called A, B, C, or E, O, and (2) gaming tables known or distinguished by any other letters or by any figures. After all, the statute does not say "any gaming table" - it modifies that phrase in the foregoing two ways.
Now, even assuming that my $2 chessboard is considered a "table", is it of the type commonly called A, B, C, or E, O, or known or distinguished by any other letters or by any figures? It just has black and red squares - no letters of figures. And I gather from the above that the "A, B, C" and "E, O" tables are for games like roulette - I infer that they wouldn't cover chess. So, arguably, my plain chessboard is not covered by (b).
This is what the purpose of the statute would seem to be, but I asked something different. I asked what in the text supported this interpretation.
There is a reason for this. If tomorrow the AG decides to read the law differently, and change the length of the exception, can one make a clear argument that chess is permitted by the law ONLY IF there is gambling, and that the second "or whist" is a separate offence, not an exception? Is there any specific TEXTUAL reason not to read that statute that way?
The plain language of the statute here is exceptionally confusing, which is why this is the first law I have seen that I thought should be struck down as void for vagueness on grammatical grounds.....
Sucker: Is this a game of chance?
WC: Not the way I play it, no.
There is no question that Hold em is a game of skill. If you can't value your hand correctly, you will lose. Every time.
I agree that doesn't get around the card playing rule--which means that in South Caroline I can't play my other favorite game, Bridge, unless Bama 1L is right and I can argue Bridge is a decedent of Whist.
or (Gambling on chess, checkers, billiards, etc is OK, but not on card games)
or (Chess is permitted provided that a) the participants gamble and b) nobody else does)
Plain language seems to suggest the latter two readings and I would side with the second one for historical reasons. In short I would assume that all exceptions apply only to the whitelisted games. This would have the force of about 1000 years of European history behind it (where gambling on strategy games was permitted), and would seem to be in line with the AG's reading today. However, I can't convince myself that this is what the statute unambiguously means.
For the purposes of determining what is g4mb1ing and what isn't, sure you can. The question is whether you can throw the game.
(1) Games of pure luck (Candyland, Chutes &Ladders) can never be thrown.
(2) Games of pure skill (chess) can always be thrown.
(3) Games blending luck and skill (p0k3r, golf, b4ckgammon) can always be thrown.
Cr4ps, r0u1ette, s10ts: all games that cannot be "thrown" in the traditional sense. Sure, there are smarter ways to play those games than others (stick to the p4ss line in cr4ps, for example), but you can't deliberately lose. So those games are g4mb1ing.
The only exception that I can think of is b14ckjack. You can keep asking for cards until you get to 22. But that doesn't work every time, because you'll hit 21 exactly every once in a while, and you won't be permitted to take another card. So I guess a game of skill is one in which you can deliberately lose every time.
Exception to the exception: when you're behind the big blind in p0ker games, you can't throw every hand.
Okay, here's a better, more scientific definition:
A game does not involve gamb1ing when all players, if playing their dominant strategy, have an expected value of zero.
A game of luck is one in which some players, if playing their dominant strategy, have an expected value that is not zero.
I guess I'll now learn if Doc Volokh's filtering is better..
Can someone explain how chess, checkers, and billiards get into the law and need an exception? None have cards or dice, are commonly called A, B, C, or E, O (at least not commonly enough that I have ever heard of it), are a roly-poley table, a faro bank, and are unlikely to be covered under (g). Checkers could possibly be rouge et noir, though I doubt it. Section (f) is incomprehensible.
Probably because chess and backgammon were the traditional exceptions to old gambling laws going back to religious edicts of the late Middle Ages. Backgammon was actually originally designed to be a gambling game that didn't run afoul with traditional prohibitions.
Clearly, it seems to me, hold em is a game of both skill and chance. You can be the best player in the world, but sometimes a hand "that you can't get away from" (i.e., is statistically a near-lock to win) can get beaten by a lesser hand that, as a matter of statistics, shouldn't have been played. That's why Phil Hellmuth gets so worked up at tournaments, because he's playing with a dominant strategy informed by game theory and statistical analysis, and yet some internet player can always irrationally call a big bet with junk and still come out on top of a hand where the dominant strategy basically mandates playing (e.g., pocket aces).
Part of the reason for the long tradition argument is that the list of exceptions seem specifically framed to fit within that tradition. Backgammon was originally a gambling game, which was the primary role originally of the doubling cube. Gambling on chess was common as well. But these were seen as games of skill and thus permissible in the eyes of the Church (and therefore State). I believe that betting on bowling was also fairly common, but I will have to double-check.
These exceptions are thus all games which have long histories of betting associated with them, and it would make sense to group all of the "or ... " clauses into subparagraph (g) for that reason.
However, I agree with you that this is not the only way to read the statute, which is why I think it is so poorly drafted. It could very easily be read to REQUIRE chess-players to gamble.
You can fold in a check opportunity. I do it sometimes as part of a repeated-game strategy. But that's a bit of a dodge, because there are sometimes when you can't fold (behind the big blind, everyone else folds). The real test for gamb1ing is:
(1) Can you EVER lose intentionally? If NO, then it's gamb1ing. If YES, proceed to 2.
(2) Can you ALWAYS lose intentionally? If YES, then it's not gamb1ing. If NO, proceed to 3.
(2) If there is an advantaged position in the game (behind the blind, or the b1ackjack dealer, or perhaps white in chess), do all players have an equal opportunity to occupy that position? If YES, then it's not gambling. If NO, then it's gamb1ing.
I think p0ker is "not gamb1ing" under this test.
Each of the first two "shall's" is a separate offense. The third shall is the punishment. In otherwords, its illegal to play the games (unless the game is excepted) and its illegal to place a side bet on the games.
A game does not involve gamb1ing when all players, if playing their dominant strategy, have an expected value of zero.
A game of luck is one in which some players, if playing their dominant strategy, have an expected value that is not zero.
So Confused,
I think you are confusing gamb1ing in general with casin0 gamb1ing, where the house has an edge. If you and I make even money bets with each other on coin flips we both have an expected payoff of zero, yet we're obviously gamb1ing.
Similarly, in a game of chess between unequal players neither one has an expected value of zero. Yet that's clearly a game of skill.
In your parsing, it is still legal for participants of chess games to gamble on games they play in, correct? Otherwise, wouldn't that "or" have to be an "and"?
Also why is the last "or whilst" tied to the previous comma-bound phrase rather than the comma-bound phrase it is in?
whist is a card game which is listed in the exceptions, so presumably, unlike Bridge or cribbage, it is legal in SC..... Hence perhaps his arguments have some merit. However, the awkward punctuation still creates some difficulty in determining the scope of the exceptions.
Also are all variants of whist legal?
As a trivial example, consider a game where you can bet on a number between 1 and 6 inclusive coming up on the roll of a die, and if your number comes up, you get five times your bet on that number. Simply place equal bets on numbers 1 through 6, you will always lose on five and win one, for a net loss of one bet unit.
True.
Similarly, in a game of chess between unequal players neither one has an expected value of zero. Yet that's clearly a game of skill.
Okay, try this one: choose two people at random and put them down at a chessboard. Based on all the information we have, their EVs are 0. Now choose two people at random and put them down at a b1ackjack table, with one in the dealer's position. Based on all the information we have, their EVs are not 0.
Anyway, I like my second test better.
At first I was thinking that I would parse the meaning of "lose," but then I realized that I can update my test for gamb1ing/not gamb1ing to account for betting against yourself:
(1) Can you EVER lose intentionally other than by wagering against yourself? If NO, then it's gamb1ing. If YES, proceed to 2.
(2) Can you ALWAYS lose intentionally? If YES, then it's not gamb1ing. If NO, proceed to 3.
(2) If there is an advantaged position in the game (behind the blind, or the b1ackjack dealer, or perhaps white in chess), do all players have an equal opportunity to occupy that position? If YES, then it's not gambling. If NO, then it's gamb1ing.
In my reading of the statute the qualifier "when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist" applies to all the excepted games, including chess. So if there is betting on a game of chess, then that game of chess does not fall within the exceptions and anyone playing in it is guilty of the offense.
I'm not sure which "or" you mean. There are so many and the statute is so badly punctuated....
It appears to me that the commas are used to offset lists. The genius who drafted the statute seems to have used no punctuation to offset the main clauses. Instead, the main clauses are offset by the use of the word "shall". Whist is the last game in the list of excepted games. That list is then repeated at the end of the qualifier to the exception.
More precisely, I should have written: "It appears to me that the commas are used to offset items in a list."
So here is a fun question:
Suppose I organize a chess tournament. Participants must pay $100 to join. There are cash prizes for the first and second-place winners. Legal or not in SC?
I would assume golf tournaments, using similar rules and payments would be legal in SC....
That (and subsequent modifications) is appealing in a mathematical sense, but IIUC the gist of the legal distinction is that playing games of skill is a fine upstanding thing to do, and should be legal, while playing games of chance (other than the state lottery :-)) is a degenerate thing that leads to broken homes or whatever and should be rigorously suppressed.
Given that one can construct games that are 1% skill/99% luck, or the converse, it seems difficult to provide a test to distinguish legal games from illegal ones. Enumeration doesn't help - how do you define all the myriad variations of p0ker?
You can intentionally lose in many games of pure chance. For example, in many games you can simply place multiple bets in such a way that no outcome will result in a win.
As a trivial example, consider a game where you can bet on a number between 1 and 6 inclusive coming up on the roll of a die, and if your number comes up, you get five times your bet on that number. Simply place equal bets on numbers 1 through 6, you will always lose on five and win one, for a net loss of one bet unit.
No. You'll break even. You lose five bets and win one.
I don't think you can devise a scheme where you can intentionally lose in a fair game of pure chance. If you could, you could devise a scheme that guaranteed winning - the mirror image of your losing strategy.
2. The skill-chance division some courts have adopted seems to be based on this idea: it makes very little sense to play a game of pure chance unless you are wagering, because there is little fun to be had otherwise. E.g., the popular card game we cannot mention simply falls apart if there is no betting. Wagering is encoded in the game.
I'm not saying this is descriptively true; people do indeed sometimes play games whose outcome is completely random for the sheer fun of it..
3. In response to einhverfr, while I every right-thinking person should want to see more medieval history of games in the law, unfortunately it will not work. You need to look at how these games were conceived of in 1802 and do a snapshot analysis. What you have in the exception is a list of respectable games that it was thought possible to enjoy without wagering.
4. I think a good historical argument can be made that bridge is legal under the staute. Of course, bridge did not exist in 1802. Whist did and is on the exception list. Bridge is descended from whist; we know a fair bit about that process. Like bridge, whist is a trick-taking card game that is possible to play coherently without wagering--although it used to be customary to play for prizes; this seems to be going on in Jane Austen novels, for instance.
One of the first card games kids often play is "war" which is a game of absolutely pure chance and no skill. Yet the duration is long enough as to have a fun factor.
Similarly chutes and ladders is pure chance, and everything is fully dependant on the roll of the dice.
I think we can think of a large number of other board games which have absolutely no skill component and yet kids find to be quite fun.
Are these games banned in your reading of the law?
Bridge... what a great game. It's been too long. I sucked. But a great game. I wish someone would televise some championship matches. Those players are just incredible.
Beer Frame!
The game you describe is that I pay a dollar for the privilege of picking a number, and I collect five dollars if I'm right. You are correct that your strategy will always lose.
But that's because the game is not fair. The payoffs do not reflect the odds.
To see this suppose you pick only one number, pay your dollar, and win, collecting a five dollar payoff. In fact you have won only four dollars - because you have to subtract the dollar you paid - when the odds were five to one against you. The payoff in your game is four to one when you win, while the odds are five to one against you. The game is unfair, like casin0 r0ulette.
Your game is fair if you bet a dollar each time, rather than paying a dollar to play. Then, when you do win, you don't forfeit the dollar bet. So you really do collect five dollars, a fair payoff when the odds are five to one. The game is fair, and no intentional losing strategy exists.
Nick
Southern morals statutes are full of euphemismes and are rarely prone to textual literalism. "Carnal knowledge" is doesn't mean studying a biology textbook, and "crime against nature" doesn't include walking on the grass.
There is danger in attempting to impose a mindset which is ignorant (doesn't know and doesn't want to know) of the legal and cultural context of the way statutes of this sort are framed and interpreted.
The best analogy I could give would be if group who regarded anti-discrimination laws as fundamentally silly were to claim that "discrimination in employment" should be interpreted as a prohibition of the business of e.g. restaurant or art criticism. (i.e. the law makes it illegal to hire people with discriminating palates or other discriminating characteristics or skills.) Obviously, such a group wouldn't care to know what the law's history was or what it was really aimed.
For reasons much like the example, I believe "textualism" has limits. All texts exist within cultures, and one has to know something about the culture giving rise to a text to attempt to understand what the text means. A dictionary isn't enough.
(One can imagine a lawsuit against a university for seeking to hire an art critic with expertise in gender studies -- a case of employment that promotes discrimination (in art) on the basis of sex if there ever was one!!)
Similarly, local ordinances against spitting on sidewalks were common in the days of tuberculosis, which could be transferred by contact with saliva. Today when such laws are found on the books they are considered very odd and without a foundation in reason.
Just because it made sense once does not make it a reasonable law for today.
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