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In the coming days, the country’s best men’s and women’s college basketball teams will clash in the N.C.A.A. tournament finals. For fans, these are some of the biggest events of the year — a chance to see the best young athletes in the highest-stakes games. They are also some of the most lucrative events for sports betting apps. Americans will legally wager nearly $3 billion this year during March Madness, the American Gaming Association estimates.
Six years ago, sports betting was illegal under federal law. Today, it is everywhere. N.B.A. and N.H.L. viewers are exposed to three gambling ads a minute, a recent study found.
What happened? The Supreme Court struck down a federal ban, concluding that it violated states’ rights. Thirty-eight states and the District of Columbia now allow gambling on games.
The old laws were strange in many ways. Other countries had allowed betting. The U.S. allowed it for some competitions, like horse racing. And millions of Americans were already betting on sports, regardless of its legality.
But the Supreme Court did not just let Americans place legal wagers. It also empowered a big industry to market sports betting apps and convince more people to gamble, through another set of rulings.
Enabling big business
Americans typically learn about free speech in the context of social and political issues. But starting in the 70s, the Supreme Court has interpreted the First Amendment to protect advertisements. Now, if something is legal, it can be advertised, and governments can’t stop companies from marketing it. (There are some limits: Ads can’t be deceptive or misleading, for instance.)
Supporters of this legal paradigm say that advertising lets consumers make informed decisions. “The court has taken the view that the freedom of speech, generally speaking, should let individuals decide for themselves what to believe without the government trying to say that these are bad messages,” Eugene Volokh, a legal scholar at U.C.L.A., told me. In other words: If people want to spend their savings on legal sports wagers, they should be able to find out how to do so.
What about tobacco? It’s true that cigarette companies are not allowed to advertise, even though their products are legal. But this is a special situation. Executives agreed not to market cigarettes as part of an unusual legal settlement with states. Otherwise, the Supreme Court has upheld tobacco companies’ right to advertise on First Amendment grounds.
The rulings mean that the only reliable way to prevent the mass marketing of a product is to ban it. For lawmakers, “there is this strange incentive to try to get around the First Amendment by not legalizing things or by banning products,” Jennifer Pomeranz, a public health lawyer at New York University, said. She pointed to the federal government’s prohibition of marijuana, even as many states have legalized the drug.
The consequences
The American Gaming Association says that sports betting ads guide people from illegal to legal markets, which raises tax revenue for governments and helps consumers avoid fraud.
But advertising also convinces more people to gamble. Recovering addicts complain that the deluge of ads presents a constant temptation when all they want to do is watch a game. Calls to gambling helplines have increased in states that legalized sports betting.
Legal gambling has also affected the sports themselves. Consider prop betting, in which people try to predict how an athlete will perform in a given game. Fans have threatened players who don’t meet their predictions. And athletes can bet on themselves, then adjust their play in an effort to cash out, as N.B.A. player Jontay Porter has been accused of doing. Such self-dealing could damage the integrity of a competition. For these reasons, Louisiana this week passed a ban on prop betting for college athletes.
Gambling can also bring other kinds of headaches for athletes. Baseball superstar Shohei Ohtani is currently mired in a scandal after his former interpreter allegedly stole millions to pay for bets.
