Censoring the Censors in the WTO - Southwestern Law School

56 J. Int’l Media & Entertainment Law Vol. 3, No. 1
been considered by nations all around the world to implicate moral and
public order concerns, 244 and then it reviewed the specific U.S. state
and federal laws that Antigua was challenging to determine if the U.S.
Congress, in particular, had enacted these laws in order to protect “public
morals” and/or “public order.” After reviewing a number of laws
at length, the panel ultimately determined that the U.S. Congress had
intended for three of the federal statutes that Antigua was challenging—
the Wire Act, 245 the Travel Act,
246
and the Illegal Gambling Business
Act, 247 read together with certain state laws—to “address concerns pertaining
to money laundering, organized crime, fraud, underage gambling
and pathological gambling.” 248 As all of these situations involved
violations of standards of right conduct, the panel concluded that these
laws met the definition of “measures to protect ‘public morals or public
order.’ ” 249
Finally, however, the panel ruled that the U.S. had failed to provisionally
justify that any of these laws were “necessary to protect public morals
and/or public order within the meaning of Article XIV (a).” 250 This
was the case, according to the panel, because “the U.S. ha[d] declined
Antigua’s invitation to engage in bilateral and/or multilateral consultations
and/or negotiations to determine whether there . . . [was] a way of
addressing its concerns in a WTO-consistent manner.” 251 In addition, the
panel ruled that, given that the federal Interstate Horseracing Act (IHA)
permitted domestic companies to provide on-line gambling services in
connection with horse races, the U.S. had not met its burden of proving
that its refusal to permit Antigua to provide such services did not “constitute
‘arbitrary or unjustifiable discrimination . . . and/or a ‘disguised
restriction on trade’ in accordance with the requirements of the chapeau
of Article XIV.” 252 In light of all of the above, the panel ordered the U.S.
to bring its laws into compliance with its GATS commitments. 253
The Appellate Body in this case affirmed parts of the panel’s decision
and reversed other parts. Specifically, it reversed the panel’s
conclusion that various U.S. state laws constituted a violation of the
244. Id. at 6.471-6.473.
245. 18 U.S.C. § 1084.
246. Id. § 1952.
247. Id. § 1955.
248. Id. at 6.486.
249. Id. at 6.481.
250. Id. at 6.535.
251. Id. at 6.533.
252. Id. at 6.607.
253. Id. at 7.5.
3058-088-3pass-02_Wright-r03.indd 56
6/30/2010 12:02:00 PM