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Board Games,Textualism, and the South Carolina Anti-Gambling Statute:

As both a Legislation professor and board game player, I am intrigued by the South Carolina anti-gambling statute discussed in Paul Cassell's recent post. The statute bans the playing of "any game with cards or dice" in a wide variety of locations, including "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."

A strict textualist reading of the statute suggests that South Carolinians are forbidden to play board games such as Monopoly and Risk in the listed locations. After all, these games have both cards and dice. Dungeons and Dragons is also apparently forbidden, since it has many different kinds of dice, ranging from 4-sided to 20-sided. No more playing Monopoly or D&D in your barn, stable, kitchen, or outhouse in South Carolina!

This textualist reading is reinforced by the statute's list of exceptions to the ban, which includes "the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game." Notice that Monopoly, Risk, Dungeons and Dragons, and so on, are not on the list of exceptions. That strongly suggests that they come within the terms of the general ban. Lawyers call this the rule of "expressio unius est exclusio alterius" (if something is not on a statutory list, that suggests it was deliberately excluded from it).

Of course, a purpose-based interpretation might suggest that the legislators simply didn't have these games in mind, and were instead focused on banning games that typically involve gambling. Not many people place bets on Monopoly and Risk. That possibility, however, is undermined by the fact that the banned games are forbidden even if no gambling is involved. The games on the list of exceptions are permitted so long as "there is no betting on any such game." The state legislature could have adopted the same relatively permissive rule for all board games - allowing people to play them so long as they don't do any betting. But South Carolina's legislative solons apparently rejected this approach.

The bottom line: This South Carolina statute is either an example of ridiculous puritanism run amok or an example of extremely poor drafting. It's also possible that there are some complex public choice machinations involved (e.g. - manufacturers of the exempt games lobbied for the statute so that South Carolinians would be incentivized to buy those games rather than those that are now banned).

UPDATE: This article suggests that the law in question dates back to 1802, a time when there were far fewer dice and card board games on the market than today. However, the state legislature has revised the law on various occasions since then, and hasn't changed the ridiculous wording. Indeed, the article indicates that the state legislature defeated an effort to liberalize the law just last year. Thus, it seems that today's South Carolina legislators (or at least a majority of them), not just the benighted ones of 1802, are satisfied with the statute's wording.

The article also notes that the state attorney general interprets the law as banning only games where "chance" plays a larger role than "skill." That isn't as comforting as you might think. It can easily be argued that chance matters more than skill in Monopoly, for example; the outcome of a game is often determined by which player managed to land on certain key properties first, which is in turn determined by dice rolls. Games of Risk between mediocre players are also often decided by chance dice rolls. The same can be said for many common dice-based boardgames where chance plays a large role (e.g. - Parcheesi, Life, etc.).

Related Posts (on one page):

  1. More on Is Poker a Game of "Chance"?
  2. Board Games,Textualism, and the South Carolina Anti-Gambling Statute:
  3. Is Texas Hold 'em a Illegal Game of Chance or Permissible Game of Skill?
Bill Poser (mail) (www):
I suspect that this is a case of poor drafting, but I wonder if the intention was not for "cards" to be taken to only "playing cards", which would exclude the board games that use cards of other types.
1.30.2009 12:39pm
einhverfr (mail) (www):
I aslo note that playing solitaire at work does not appear to be illegal but depending on where your computer is at home might be.....
1.30.2009 12:42pm
RSF677:
What year this law was passed in?
1.30.2009 12:44pm
Bama 1L:
The Battleship lobby strikes again!
1.30.2009 12:48pm
Ilya Somin:
I wonder if the intention was not for "cards" to be taken to only "playing cards", which would exclude the board games that use cards of other types.

Maybe. But these games also have dice as well, and the statute bans all games that have either cards "or" dice. Moreover, the cards used in Monopoly and other such games are "playing cards" too (i.e. - cards used to play a game).
1.30.2009 12:51pm
JB:
Sufficiently advanced incompetence is indistinguishable from malice. On the other hand, I doubt SC lawmakers are familiar with D&D, so they probably just didn't think of it.

On the gripping hand, this should lead to an expansion of eurogames like Carcassonne, Vinci, Ra, and other such that have neither cards nor dice (sucks to be Manhattan, Settlers, Power Grid, El Grande, etc though). So I am all in favor.
1.30.2009 12:51pm
Calderon:
Another facet, which is relevant to purpose arguments and arguably textualism arguments in certain circumstances as well, is that one site claims that law was passed by the South Carolina Legislature on Dec. 18, 1802 and has existed in basically the same form since that time.

I think that this statute illustrates a different problem than the Ledbetter / Title VII issues discussed earlier. There, one could plausibly argue that the statute's purpose was clear (preventing discrimination), but the statute's pusuit of the purpose has limits, and the question was whether knowing that purpose helps you decide the issue in Ledbetter.

For this SC gaming statute, there's really no way to tell what purpose the drafters from 200 years ago intended. Besides being directed at gambling, one could just as easily assume the purpose is to prevent many forms of gaming generally. The drafters could have assumed that gaming is a waste of time or breeds negative characteristics, and instead people should spend their time reading, knitting, cleaning their guns, or whatever. "[B]illiards, bowls, backgammon, chess, draughts, or whist" are exempted because they build the community, improve the intellect, or have some other positive effect (so long as no gambling is involved).
1.30.2009 12:52pm
NTB24601:
Ilya Somin:

The bottom line: This South Carolina statute is either an example of ridiculous puritanism run amok or an example of extremely poor drafting.

I vote for both.
1.30.2009 12:53pm
Thales (mail) (www):
One question--what is the game of "draughts"? This sounds to me like a competition in downing pints of Guinness rapidly.

Also, chess is exempted, but not go or mahjong?
1.30.2009 12:53pm
Bama 1L:
On the gripping hand, this should lead to an expansion of eurogames like Carcassonne, Vinci, Ra, and other such that have neither cards nor dice (sucks to be Manhattan, Settlers, Power Grid, El Grande, etc though). So I am all in favor.

Let the Euroweenie-Ameritrasher flame wars commence!
1.30.2009 12:55pm
Sarcastro (www):
D&D is banned cause it's satanic.

And don't give me none of that 'First Amendment' claptrap. Our founders burned witches!
1.30.2009 12:55pm
einhverfr (mail) (www):
Also the exception groupings seem to be very vague. As mentioned in my response to Cassel, I am unable to read the statute and determine whether or not I am REQUIRED to bet when I play chess, or whether I can even play chess legally.

This statute is so badly written it should be struck down for vagueness on grammatical grounds.....
1.30.2009 12:56pm
Thales (mail) (www):
"On the other hand, I doubt SC lawmakers are familiar with D&D, so they probably just didn't think of it. "

I don't doubt that if SC legislators were aware of the game, they would attempt to ban it.
1.30.2009 12:58pm
Marc Blitz (mail):

Playing D&D might in any case be protected by the First Amendment. See Watters v. TSR, Inc., 715 F. Supp, 819, 821 (1989):

"the publication and distribution of the 'Dungeons and Dragons' material, whether it is classified as literature or merely a game, falls within the class of publication which is generally afforded protection under the first amendment"

Of course, this is only one district court decision. And playing the game is different from publishing and distributing it. But if playing a video game game is protected expression, it's hard to see why playing D&D would not be.
1.30.2009 1:02pm
Ilya Somin:
One question--what is the game of "draughts"?

Draughts is the British word for what Americans call checkers.
1.30.2009 1:03pm
David M. Nieporent (www):
Bama 1L wins the thread.
1.30.2009 1:04pm
delurking (mail):
Isn't it generally accepted that if a law isn't enforced for a long time then it cannot be enforced? So, if SC has not been prosecuting Monopoly players, it can't start now.
1.30.2009 1:06pm
Thales (mail) (www):
"Draughts is the British word for what Americans call checkers."

Thanks. That also probably gives a clue to where the statutory language was borrowed from. I'm guessing it's some imperial/colonial regulation.
1.30.2009 1:07pm
NTB24601:
So don't play D&D at taverns in S.C., but feel free to gamble as much as you like on ro sham bo.
1.30.2009 1:08pm
wooga:
Children's playing card games like Pokemon and Yugio (no idea how it's spelled), as I understand them, involve the winner obtaining some of the cards previously owned by the loser. That should take them out of the 'exceptions' list for non-betting games.

Frankly, I can't wait to see police raiding 3rd grade playgrounds.
1.30.2009 1:14pm
einhverfr (mail) (www):
NTB24601:

Actually, you can't play D&D in a kitchen, stable, open field, etc. either. This means that playing it on the kitchen table would be illegal. Also I am not sure what a "house used as a place of gaming" means. It might mean a house where people get together to play these games. In which case, you can't play it at home either...
1.30.2009 1:15pm
Sofa King:

The same can be said for many common dice-based boardgames where chance plays a large role (e.g. - Parcheesi, Life, etc.).


This hits particularly hard such barroom favorites as Chutes and Ladders, and, of course, Candyland.
1.30.2009 1:19pm
Bill Poser (mail) (www):

Moreover, the cards used in Monopoly and other such games are "playing cards" too (i.e. - cards used to play a game).


I think you're wrong to interpret "playing cards" as "cards used to play a game". That is the analytic interpretation, but I think that "playing cards" is lexicalized as referring to the familiar set of 52 cards, so that it would be appropriate for a court to construe "playing cards" narrowly as excluding the kinds of cards used in Monopoly etc.

Suppose, for example, that you asked me to bring you a set of "playing cards". I bet that you would be disappointed if I brought you the Community Chest cards from a Monopoly set. Your expectation would be cards suitable for playing solitaire or bridge.
1.30.2009 1:21pm
snarker:

Isn't it generally accepted that if a law isn't enforced for a long time then it cannot be enforced?



So THAT's what happened to the 9th and 10th Amendments!
1.30.2009 1:23pm
Bama 1L:
The same can be said for many common dice-based boardgames where chance plays a large role (e.g. - Parcheesi, Life, etc.).

The randomizers in Life are a spinner (for movement) and, in newer editions, cards (for consequence of landing on certain spaces). I'd be interested to learn that dice have ever been used.

I was wondering if roulette were banned, but I suppose it falls under the gaming table rule.

No idea how a court would conceive of the Pop-O-Matic bubble, so for now the Trouble league is on hold.
1.30.2009 1:23pm
rbj:
SC is the state that had the Confederate Battle Flag (which is actually something different, but work with me here) flying from the Capitol building for decades, because the 1965 Legislature forgot to put in a sunset clause in the law allowing the display. Even the surviving members of that session admitted their goof when the whole flag flap was at its peak.

Though I'm sure one could find such examples of slip ups (to be kind) in every state legislature.
1.30.2009 1:23pm
Mr. Bingley (www):
This would also rule out all the Avalon Hill historical wargames, such as Gettysburg, Jutland, Panzerblitz, D-Day, etc. With such Solomonaic wisdom it's no wonder kids turn to crystal meth!
1.30.2009 1:24pm
Ilya Somin:
Isn't it generally accepted that if a law isn't enforced for a long time then it cannot be enforced? So, if SC has not been prosecuting Monopoly players, it can't start now.

Actually, this rule is controversial. Some jurists and courts accept it. Others don't. Moreover, it's doubtful that it applies in a case where the statute clearly is being enforced, but not against every game that could conceivably be included in its scope. A statute that is enforced, but not to its utmost limits, is different from one that isn't used at all.
1.30.2009 1:25pm
A Law Dawg:
Trouble was never more aptly named.

And as a former citizen of South Carolina I can assure that its lawmakers have most definitely heard of Dungeons and Dragons, even if they have no idea what it actually is.
1.30.2009 1:25pm
martinned (mail) (www):

Isn't it generally accepted that if a law isn't enforced for a long time then it cannot be enforced? So, if SC has not been prosecuting Monopoly players, it can't start now.

Yes, desuetude is a wonderful thing. FYI, it goes back to this passage from the Pandects, one of the Julian codifications:


D. 1,3,32:

(1) An ancient custom is not improperly observed as a law (and this is what is called law established by usage). For as the laws themselves restrain us for no other reason than because they are accepted by the judgment of the people — for it is but proper that what the people have approved without being written should bind all persons — for what difference does it make whether the people have manifested their will by vote, or by acts and deeds? Wherefore the rule has also been most justly adopted that laws shall be abrogated not only by the vote of the legislator, but also through disuse by the silent consent of all.

Or, in Latin:

Inveterata consuetudo pro lege non immerito custoditur, et hoc est ius quod dicitur moribus constitutum. Nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes: nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? Quare rectissime etiam illud receptum est, ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.


Unfortunately, it seems like the law has been enforced quite regularly, just not against Monopoly.
1.30.2009 1:27pm
Kent Scheidegger (mail) (www):
The problems of odd gambling statutes and obsolescence are not limited to the South. In California, it is a crime to play hokey-pokey. Cal. Penal Code § 330.

Tell the vice squad to raid all the Head Start classrooms.
1.30.2009 1:27pm
Fedya (www):
At least my two favorites, Go and Scrabble, don't seem to fall afoul of the legislation.

And I think Bang Neki (wagering on Go) would still be legal, too.
1.30.2009 1:31pm
martinned (mail) (www):
Oops, getting my Romans mixed up: The codification is by Justinian, the passage itself is from a Digest by Julian.
1.30.2009 1:32pm
Bama 1L:
The more I think about the Pop-O-Matic Bubble, the more I think it's a type of die.

Evidently, South Carolina has got a Problem with a capital P and that rhymes with T and that stands for Trouble!
1.30.2009 1:35pm
Fedya (www):
Bill Poser wrote:

I think you're wrong to interpret "playing cards" as "cards used to play a game". That is the analytic interpretation, but I think that "playing cards" is lexicalized as referring to the familiar set of 52 cards, so that it would be appropriate for a court to construe "playing cards" narrowly as excluding the kinds of cards used in Monopoly etc.


I think you need to generalize it to the suits and values. There's the pinochle deck, subsets of the pоker deck used in games like euchre, and supersets (double decks plus jokers) used in canasta.

I wonder if wagering on mah-jongg would be illegal. I'm sure there's some idiot prosecutor who would try to bring a case. :-|
1.30.2009 1:37pm
Fedya (www):
Wooga wrote:

Children's playing card games like Pokemon and Yugio (no idea how it's spelled), as I understand them, involve the winner obtaining some of the cards previously owned by the loser. That should take them out of the 'exceptions' list for non-betting games.


You're nine years too late.
1.30.2009 1:38pm
Joseph Slater (mail):
I agree that Bama 1L won this thread early on, but a close runner up is "Trouble was never more aptly named."
1.30.2009 1:45pm
bornyesterday (mail) (www):
Does a beer pong table count as a gaming table?
1.30.2009 1:55pm
Jim Rose (mail) (www):
This law will keep the big money professional Monopoly circuit out of South Carolina.
1.30.2009 2:45pm
Jim Rose (mail) (www):
Does the law define "Dice"? Must dice be rolled? If that is the case, the oldest established, permanent floating crap games in South Carolina will be using dreidels in the future, and claiming a first amendment freedom!
1.30.2009 2:54pm
NTB24601:
einhverfr:

Actually, you can't play D&D in a kitchen, stable, open field, etc. either.
My bad. You're right. Not even in an outhouse. Or even a moonlit clearing in the woods like Satan intended!
1.30.2009 3:55pm
Reasoner:
It looks like you can play Dungeons and Dragons or other games that normally use dice, as long as you don't use dice. Some other random number generator, either electronic or mechanical, should suffice. I vaguely recall seeing such electronic random number generators for sale. Of course that doesn't make the law a less stupid infringement of freedom.
1.30.2009 4:15pm
einhverfr (mail) (www):
So is Kriegspiel legal in SC? Is betting on Kriegspiel games legal in SC?

Kriegspiel is a sort of blind variant of chess (played with a referee), where you can see your own pieces but not your opponent's. There is a great deal more chance because of this element than there is in the standard Chess versions. One of the typical elements of successful Kriegspiel play is to attempt to make illegal moves to determine where opposing pieces are.
1.30.2009 4:29pm
Guest101:
Is there some version of chess or billiards which requires dice or cards of which I am unaware? I would think those would have been excluded even without the express exemption.
1.30.2009 4:30pm
wooga:

It looks like you can play Dungeons and Dragons or other games that normally use dice, as long as you don't use dice. Some other random number generator, either electronic or mechanical, should suffice. I vaguely recall seeing such electronic random number generators for sale. Of course that doesn't make the law a less stupid infringement of freedom.

How about chicken bones and tea leaves as your 'random number generators'? That makes it even more eeeeevil!
1.30.2009 4:30pm
Shelby (mail):
Snarker: So THAT's what happened to the 9th and 10th Amendments!

What are these amendments of which you speak? Every judge knows there are only eight in the Bill of Rights.

On a different note, I wonder whether the cubes used in Boggle count as dice...
1.30.2009 4:45pm
Aultimer:

The article also notes that the state attorney general interprets the law as banning only games where "chance" plays a larger role than "skill."

That's pretty funny. We just had a county criminal court case in PA that found "Lone Star State-ish" "Grasp-them" p0k3r to be a game of skill (and therefore legal). [sorry for the spam-block dodges]

Relying on that precedent, $100 ante p0k3r in a bar is OK, but Parchisi in your kitchen is criminal.
1.30.2009 5:01pm
CDU (mail) (www):

What are these amendments of which you speak? Every judge knows there are only eight in the Bill of Rights.


Up from seven before last June.
1.30.2009 5:02pm
KenB (mail):
When I was a small child (in the 1950s), my parents used a baby sitter whose religious beliefs were so strict that she would not play Monopoly with us, because it required use of dice. So at least some people might actually intend the apparent result.
1.30.2009 5:25pm
JK:
Based on previous VC threads I have a feeling that a law that, inadvertently or not, bans playing D&D is going to be about as popular here as Kelo.
1.30.2009 5:37pm
kietharch (mail):
"..many different kinds of dice, ranging from 4-sided to 20-sided..."

I think 4-sides dice is theoretically possible (think of a triangular pyramid) but you probably mean the 6-sided variety.
1.30.2009 6:10pm
einhverfr (mail) (www):
kietharch:

Wrong. I used to play D&D and it uses dice in the shape of every Pythagorean solid, plus a 10-sided variety. I learned my pythagorean solids by comparing them to D&D dice.
1.30.2009 6:13pm
New Pseudonym:
I wonder if South Carolina is alone. I suspect not. Although the specific prohibitions may be different, laws concerning gambling and drinking tend to be arbitrary, not reflect contemporary standards, and are unevenly enforced.
1.30.2009 7:07pm
Eric Jablow (mail):
Einhverfr,

They're actually called Platonic solids. By the way, would a game like Diplomacy, with absolutely no randomness, be banned? One could argue that that might be a good idea, however.
1.30.2009 7:14pm
ys:

Thales (mail) (www):
"Draughts is the British word for what Americans call checkers."

Thanks. That also probably gives a clue to where the statutory language was borrowed from. I'm guessing it's some imperial/colonial regulation.

"Draughts" are actually what happens when you open several windows in your house on top of Mount Washington. It's really a wise public health measure to prohibit draughts while gambling - one can easily get carried away and forget about the deadly windows.
1.30.2009 7:33pm
Ian Argent (www):
There are some wargames and role-playing games that specify a d3, or 3-sided die. I leave it as an exercise for the student as to where you find one.

(Incidentally, around here 4-sided dice are referred to as caltrops...)
1.30.2009 8:19pm
CDU (mail) (www):

(Incidentally, around here 4-sided dice are referred to as caltrops...)


Yes, I have stepped on one barefoot. Ouch!
1.30.2009 8:32pm
arbitraryaardvark (mail) (www):
I did not find annotated s c statutes online. Now that findlaw is owned by west (which rents access to annotated statutes) we're not likely to see these soon, unless somebody comes along and makes some.
Some of you have all you can eat wexis and can tell us if that statute has been narrowed or otherwise interpreted in case law.

The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government or any department thereof for a redress of grievances.

This might tend to protect non-betting gameplay.
If only there were some sort of institute for justice or a civil liberties union that could take on such cases.

Indiana, as far as I know, doesn't have a general anti-gaming law, but gaming in bars is regulated. At my local irish bar the owner wouldn't let us play cards because he said it might get him in trouble with the liquor board.
1.30.2009 8:39pm
Vernunft (mail) (www):
"By the way, would a game like Diplomacy, with absolutely no randomness, be banned?"

No. Read the statute, man.

"Absolutely" is misused here. Sometimes you have to guess where support will come from, after all.
1.30.2009 10:47pm
KFR:
Chutes and Ladders uses a spinner, not dice, so it should be legal.
1.30.2009 11:22pm
Guest101:
"...but you probably mean the 6-sided variety."

If only that were true, the elven wizard Sanguiar de Tel'Quessir (1995-1998, R.I.P.) might still be with us today.
1.30.2009 11:44pm
Marc Blitz (mail):
"And what's a game of chance to you, to him is one
Of real skill"

-- Elliott Smith, Angeles on Either/Or (Kill Rockstars 1997)
1.31.2009 9:18am
Cornellian (mail):
This would also rule out all the Avalon Hill historical wargames,
such as Gettysburg, Jutland, Panzerblitz, D-Day, etc.


Ah that brings back memories. Don't forget Squad Leader and its rule
book that read like the Code of Federal Regulations.
1.31.2009 1:35pm
Cornellian (mail):
Reminds me of a story I read years ago about the band "The Pointer
Sisters." They said they picked their name because when they were kids they
had to use a little spinning arrow for random number selection when
playing games. They couldn't use dice because their parents considered
dice to be sinful. I'm sure they weren't the only people around who
held that view. So it is entirely possible that the South Carolina
legislature at the time this statute was enacted, and even today, wants
to ban any game of chance, whether gambling is involved or not, even if
they won't quite admit that in public for fear of being laughed at.
1.31.2009 1:40pm
ReaderY:
But of course an absolute ban on dice would be perfectly constitutional. States have the same powers to regulate matters within their province as the federal government in its. Just as the federal government can regulate commerce at one remove including instrumentalities of commerce, the states can regulate at one remove as well. Under current jurisprudence, regulating dice is an easy call; the state has the power not only to regulate anything which once passed through gambling hands, it can regulate as gambling anything which be used for gambling. The only line comes with things which have no direct use in gambling but merely might affect people's gambling behavior. Dice has direct use in gambling (for that matter, so does almost everything else).

Dice have a relationship to gambling that is at least as rational as the relationship a marijuiana plant grown in owns own home for prsonal use does to interstate commerce. The relationship between the Federal Government and the States is a contract. What's sauce for the goose is sauce for the gander.

This is an easy call.
2.1.2009 9:45pm

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