Coronavirus

Are Video Arcades More Dangerous Than Casinos During a Pandemic?

A federal lawsuit argues that the distinction drawn by Massachusetts is unconstitutional.

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Casinos and video arcades, both of which feature rows of electronic games that people use in close proximity to each other, pose similar risks of COVID-19 transmission. Yet in Massachusetts, casinos have been open for two months, while video arcades remain closed under an order that Gov. Charlie Baker originally issued in March.

Like many of the distinctions drawn by the COVID-19 lockdowns that all but a few governors imposed last spring, this one makes no medical sense. A federal lawsuit filed last week argues that Baker's discrimination against video arcades is unconstitutional because it is scientifically indefensible.

Baker originally included video arcades in Phase III of his reopening plan, which took effect on July 6, but changed course without explanation on July 2. In response to a state legislator's inquiry, the governor offered nothing but boilerplate about "the latest science" and "input from public health experts."

You might wonder what sort of science tells us that video games played for fun are inherently more dangerous as disease vectors than video games played for the chance to win money. So does Gideon Coltof, the owner of Bit Bar, a restaurant-arcade in Salem.

Coltof notes that businesses like his can take the same precautions casinos are taking. They can erect barriers or maintain physical distance between customers, and they can wipe machines down between users.

Yet while Baker is allowing Coltof to operate his restaurant during Phase III, the governor has decreed that Coltof may not turn on his video games. For a business whose main attraction is the opportunity to play classic arcade games while eating, that restriction could be a death sentence.

If Baker's order stands, says Coltof's motion for a preliminary injunction, "Bit Bar likely will go out of business and will not be able to open again even after all COVID-19 orders are lifted." Ordinary arcades are even more vulnerable to that fate, all because of Baker's pseudoscientific whim.

The absurdity of Baker's policy is illustrated by its implications for the Ms. Pac Man machines that Coltof uses as dining tables, which the governor says he may continue to do as long as the machines are turned off. According to Baker's logic, Coltof's motion notes, "this table turns into a deadly disease vector" if you "flip the switch" and turn it on.

What recourse does a business owner have when confronted by such livelihood-killing capriciousness? Coltof's lawyer, Marc Randazza, argues that Baker's distinction between casinos and video arcades is a content-based restriction on speech, which makes it presumptively unconstitutional.

The Supreme Court has recognized that video games are a form of constitutionally protected speech. "There is no meaningful distinction between the permitted and forbidden games other than their content," Coltof's motion says.

Content-based speech restrictions are subject to "strict scrutiny," which means they must be "narrowly tailored" to further a compelling government interest. It is hard to see how Baker's arbitrary policy can satisfy that test.

In fact, Randazza argues, the governor's edict would fail even the highly deferential "rational basis" test, which requires only that a challenged rule be "rationally related" to a legitimate government purpose. "There are no facts that would support the assertion that a casino with electronic gambling machine kiosks is a safer environment than a restaurant-arcade that uses similar video game machine kiosks in a similar layout," the motion says.

For the same reason, Randazza claims, Baker's policy violates the 14th Amendment's guarantee of equal protection. That provision, which requires that similarly situated people be treated alike, has extra force when the government interferes with a fundamental right such as freedom of speech.

If you're not a fan of Ms. Pac Man, Galaga, or Q*bert, this case might not strike a chord with you. But Coltof's complaint poses the same question that Americans across the country have been asking for months: Are there any limits to what the government can get away with by invoking public health?

© Copyright 2020 by Creators Syndicate Inc.

NEXT: Judge Amy Coney Barrett's Assorted Canards of Contemporary Legal Analysis: Redux

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  1. “Are Video Arcades More Dangerous Than Casinos During a Pandemic?”

    Yes, because casinos bring in way more tax revenues.

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    2. It’s the same logic that says you can go to Walmart for groceries and diapers, but not for a hat. Or distinguishes between types of boats. Stop trying to hold politicians to any logical standards, as they have all proven themselves incapable of either logic or rational decisions. If the idea of risk containment was ever THE issue, there would have been no assumption that the corner ice cream shop in Burke NY was the same risk as crowded NYC deli.

      The reality is that if there ever was a case for emergency executive orders for closures, it has long passed. Such provisions at best are an interim device to allow time for legislatures to take the responsibility for action. None have.

      But closures for public health regardless aren’t Constitutional anyway unless one could show that a specific business itself is a public health problem [restaurant sanitation]. So long as we have a right to decide to not frequent a business, we have the ability to make our own health decisions and take calculated risks as we see them. Fucking nanny state.

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    4. Precisely.

      Casinos are even highly ‘regulated’ in that the odds for each type of game are dictated by the state to ensure that they get their money, and it’s not an insignificant amount, either. They are a huge source of tax revenue.

    5. Well, you have to balance risk and reward. The same way they allow essential workers to keep working, they have to allow essential tax revenue to keep flowing. The risks are the same between casinos and arcades but the reward is nowhere near the same. The obvious answer to this is to tax the shit out of video games, then they’ll be fine.

    6. But it’s for the children!

      1. It’s for grandma. Children are just potential grandma killers.

  2. Hey that kid racking up points on pinball who I have never seen fall is deaf dumb and blind, but he is not over weight, and doesn’t have hart issues or diabetes.

    1. “but he is not over weight, and doesn’t have hart issues or diabetes.”
      Six more months of internment should take care of that – – – – – –

    2. Of course he doesn’t have any issue with deer. What did they ever do to him?

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  4. Most shutdown mandates and start up rules are arbitrary and political, so pretty much like all other laws, but the pandemic gives lawmakers reason to make more laws and push their agendas even harder.

  5. “Are there any limits to what the government can get away with by invoking public health?”

    Not according to the judiciary.

    1. Now, now. Remember, the constitution is not a suicide pact. You wouldn’t wipe your ass with your suicide pact.

  6. The only danger associated with the Communist Chinese Virus is the acceptance of idiotic mandates from power mad fascist government officials.
    Other than total destruction of the economy, this is no different than all the other strains of virus we have shrugged off.

    And to answer the question, both as as dangerous as buying a lottery ticket. Follow the money.

  7. They’ve got Marc Randazza for a lawyer? Might as well fold now… Or do they expect that Randazza’s stream of verbal diarrhea will win for them?

  8. Yes, because the elderly love them some Mortal Kombat but never go play the slots. I’ve seen full bus loads of the most vulnerable going to waste their SS checks on Frogger.

    1. Now, if you could get a cocktail waitresses attention while you were playing DigDug, that might change.

  9. I am surprised anyone had standing to sue in the first place.

  10. Of course it’s completely arbitrary. But the sad part is that at this point no one cares. Government has ceased all pretense of being bound by the constitution. It’s pure FYTW without even the attempt at lip service to the rule of law.

    I wish there was another country I could move to where there are consistent rules that the government follows. The world is an ocean of piss and it just feels like the only island is quickly sinking.

    1. Communist China has consistent rules that the government, and damn well everybody else, follows.
      And they have just restarted international flights.

      I would like to suggest that instead you just vote Republican at all levels. Not perfect, but preferable to fascism.

      1. Communist China has consistent rules that the government… follows.
        What kind of bizarro Earth do you come from and how do I get there?

        1. Through the looking glass, my friend, through the looking glass.

  11. You neglect the importance of not cutting whole societies off from their addictions cold turkey. It’s why liquor stores are essential. We don’t need hospital beds full of people having the gambling tremors.

    1. Hey, if CBD can be medicine why not slots?

    2. That must be the explanation of why kids are allowed to play sports such as football and soccer (without masks) but the schools are either closed or open with strict rules.

  12. We no longer have a semblance of Rule of Law in this country. We have rule by arbitrary and capricious whim.

    1. Mostly in the form of bars that cater to Millennials and Gen-Xers who want to play the video games of their youth

      Not that its a bad thing, a bar by my wife’s office has a 6-player X-Men machine 🙂

  13. This makes perfect sense as long as you don’t actually think about it, perfection of government in action. Allow people to play slots, most of which are older and more susceptible to DYING from the virus. While simultaneously forbidding kids video games played by the demographic least likely to die from the virus. Did Cuomo come up with this plan in order to kill more elderly? I was shocked to see lines outside casinos at 8am when they reopened here slots only. I guess people were jonsing bad to give their money away and risk getting sick. With all the online gambling available it seems like an addict could still get their fix without the risk. But then they live for risk.

  14. In a place like Massachusetts, with high levels of COVID panic normal longing for authoritarian control, the question is not “why are arcades restricted?”, but rather “why are casinos allowed?” And to answer that, you need to do no more than stand in downtown Boston and look to the north, to the blot-on-the-skyline that is the Encore Casino, which opened about a year ago.

    When the state unveiled its phased re-opening plan, the inclusion of casinos for early-phase re-opening was jarringly incongruous. Nobody with half a brain would believe that this was the result of objective “follow the science” analysis rather than some combination of back-room dealing and kickbacks.

    So now that I’m often closed out of outdoor exercise gatherings because they have reached the state-mandated limit of 10 (generally young and healthy) people, I can still go hang out indoors with thousands of overweight geriatrics.

    1. Down here in Texas we also have a 10-person outdoor gathering limit. It’s been a bit jarring for my family in particular since my mother is a docent at a nearby aviation museum which was recently planning an event. The museum is a tiny terminal building with a normal fire marshal capacity of 44, so its coof-legal capacity is 22. The terminal is attached to two hangars and an airstrip (which contains the vast majority of what one might consider “the museum”) but the museum’s entire property other than the terminal building is considered, legally, “outside” so the entire thing has a coof-legal capacity of 10. Naturally, the city leaders declined to grant an exception.

      1. Can’t they enter 10 at a time until they hit 22 in the terminal?

  15. Opening arcades and casinos while the virus is still ongoing doesn’t bode well. It doesn’t matter which venue is more dangerous. Places where crowds can gather are definitely dangerous.

  16. JFC. Open the damn economy.

    This is all arbitrary, pseudo-science bull shit at this point.

    Where did these doctors go to school? The Doug Henning Institute of Magic is Illusion and Illusion is Magic?

    God, this on a level of retardation that not even retards connect to.

  17. NOTHING is more risky than the purchase of a state lottery ticket.
    It has to be done in person, face to face, closer than six feet.
    It cannot be done contactless, because it is cash only.
    The customer has to hand over a germ-ridden piece of paper previously handled by hundreds of unknown persons, and get back a piece of paper handled by at least one other person.
    And yet, not ONE damned science-loving governor in the country has banned lottery ticket sales.
    So after Trump triumphs in November, he needs to push through a constitutional amendment that requires all lottery sales to be stopped for the entire duration of any “emergency” declared by the government, and the sales cannot be resumed until three weeks after the “emergency” is over.
    Then the next virus will just be the next virus, not the end of the world.

    1. The constitution already has that protection in it: The equal protection clause of the 14th amendment. However, the constitution no longer means anything and can be ignored without consequence whenever it doesn’t fit the narrative of whatever the “Emergency”-of-the-Month is. All we have left is pen and phone government enacted and enforced by whoever happens to be pointing a gun at you at the precise moment and subject to change without reason or warning.

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    1. Play your own game or GTFO of my way. Don’t ask Uighurs in chinese prison camps to level up your game.

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