## Facts

- A village enacted an ordinance making it unlawful to keep, locate, maintain, or operate “simulated video or mechanical gaming devices” within village limits.
- The ordinance defined prohibited devices to include video poker, video or mechanical slot machines, video or mechanical bingo machines, and similar coin-operated devices involving games of chance based on common gambling games.
- A bar owner had operated two video slot machines that fell within the ordinance’s definition.
- After the ordinance took effect, the owner removed the machines and sought declaratory and injunctive relief, alleging federal and state constitutional violations.
- The village justified the ordinance as a law-enforcement measure aimed at preventing illegal gambling and related harms; the police chief testified the devices were frequently used for illegal gambling.

## Issues

1. Whether the operation or maintenance of the banned gaming devices constitutes speech or expressive conduct protected by the First Amendment, triggering strict scrutiny.
2. If not protected expression, whether the ordinance violates substantive due process because it lacks a rational relationship to a legitimate governmental purpose.
3. Whether the ordinance is facially unconstitutional and therefore invalid in all applications.

## Decision

- The appellate court affirmed summary judgment for the village and upheld the ordinance.
- The court held the banned devices were not protected speech or inherently expressive conduct under the First Amendment.
- The court applied rational basis review and concluded the ordinance was rationally related to the legitimate governmental interest in preventing illegal gambling and its secondary effects.
- The court rejected the facial challenge, concluding plaintiffs failed to show the ordinance was invalid in all circumstances.
- The court also concluded the ordinance’s definition of prohibited devices was sufficiently clear to satisfy due process.

## Legal Principles

- Conduct is protected by the First Amendment only if it is speech or inherently expressive; devices primarily designed to simulate or facilitate gambling do not become protected expression merely because they have a video component.
- Municipal regulation of non-fundamental rights and economic activity is reviewed under rational basis; the ordinance is valid if any reasonably conceivable facts could justify it.
- Under rational basis review, a municipality need not adopt the least restrictive means; a categorical ban may be permissible if rationally connected to the stated purpose.
- A facial challenge requires showing no set of circumstances exists under which the ordinance would be valid; this is a demanding standard outside core First Amendment contexts.
- Due process vagueness concerns are reduced where an ordinance provides a functional definition and specific examples of prohibited items.

## Conclusion

The court upheld the village’s ordinance banning simulated video and mechanical gaming devices, concluding the devices were not protected First Amendment expression and that the ban was a rational exercise of municipal police power aimed at preventing illegal gambling.


Serpico v. Village of Elmwood Park, 799 N.E.2d 961 (Ill. App. Ct. 2003)