FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONARCH CONTENT MANAGEMENT

LLC, a Delaware limited liability 

company; LAUREL RACING 

ASSOCIATION, INC., DBA Laurel 

Park, a Maryland corporation,

Plaintiffs-Appellants,

v.

ARIZONA DEPARTMENT OF GAMING, 

a political subdivision; TED VOGT, 

Director, in his official capacity; 

RUDY CASILLAS, Deputy Director 

and Racing Division Director, in his 

official capacity; ARIZONA RACING 

COMMISSION, a subordinate political 

entity; RORY S. GOREE, Chairman, in 

his official capacity; TOM LAWLESS, 

Vice Chairman, in his official 

capacity; J.C. MCCLINTOCK, 

Commissioner, in his official 

capacity; CHUCK COOLIDGE, 

Commissioner, in his official 

capacity,

Defendants-Appellees.

No. 20-15047

D.C. No.

2:19-cv-04928-

JJT

OPINION

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding
2 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

Argued and Submitted July 17, 2020

San Francisco, California

Filed August 20, 2020

Before: A. Wallace Tashima and Andrew D. Hurwitz, 

Circuit Judges, and Consuelo B. Marshall,* District Judge.

Opinion by Judge Hurwitz

SUMMARY**

Civil Rights

The panel affirmed the district court’s denial of a 

preliminary injunction in an action challenging Arizona 

Revised Statute § 5-112(U), which requires, among other 

things, that any simulcast of live horseracing into Arizona 

that originates outside the state “must be offered to each 

commercial live-racing permittee ... and additional 

wagering facility” in the state. 

The panel held that plaintiffs, Monarch Content 

Management, a simulcast purchaser and sales agent for 

racetracks, and Laurel Park Racing Association, a Maryland 

racetrack whose races Monarch simulcasts, had not shown a 

likelihood of success on the merits of their claims. 

* The Honorable Consuelo B. Marshall, United States District Judge 

for the Central District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 3

The panel first held that that the Interstate Horse Racing 

Act of 1978, 15 U.S.C. §§ 3001-3007 (“IHA”), pertaining to 

interstate horserace wagering at off-track sites, did not 

preempt § 5-112(U). The panel determined that on their 

faces, the IHA and the Arizona statute regulated different 

actors and activities. The IHA did not address how the states 

can regulate simulcasts, and the Arizona statute did not 

address Laurel Park’s statutory right to consent before 

interstate wagering on its races could be conducted. Thus, it 

was not facially impossible to comply with both laws. The 

panel further rejected plaintiffs’ argument that A.R.S. § 5-

112(U), frustrates the intent of the IHA.

The panel rejected plaintiffs’ argument that A.R.S. § 5-

112(U) is an unconstitutional regulation on commercial 

speech and a forbidden content-based restriction. The panel 

assumed arguendo that Monarch’s simulcasts were 

expressive in certain respects. The panel held, however, that 

the Arizona statute did not regulate that expressive content, 

but rather only Monarch’s conduct—the “offer” to sell 

simulcasts to live-racing permittees and off-track betting 

sites. The statute’s requirement that Monarch must make 

simulcasts available on equal terms was plainly incidental to 

the statute’s focus on Monarch’s non-First Amendment 

business practices.

The panel rejected plaintiffs’ Fourteenth Amendment 

Due Process challenge. The panel held that because A.R.S. 

§ 5-112(U) did not regulate speech, a less strict vagueness 

test applied. The panel noted that under the statute, 

Monarch’s wish to offer its simulcasts to some live-racing 

permittees and off-track betting sites in Arizona, but not to 

others was plainly proscribed. The panel further found 

A.R.S. § 5-112(U)’s language prohibiting “any 
4 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

anticompetitive or deceptive practice” to be constitutionally 

sufficient.

The panel held that the statute did not violate the 

Dormant Commerce Clause. The panel stated that Arizona 

treats out-of-state simulcast providers exactly the same as instate providers. The statute does not regulate 

extraterritorially; it merely sets the terms of doing business 

if Monarch chooses to provide simulcasts in the state.

Finally, the panel held that the statute did not give rise to 

a Contract Clause claim. The panel concluded that nothing 

on the face of the Arizona statute affects whatever rights 

Monarch may have to terminate its contract with Turf 

Paradise, a live-racing permittee in Arizona; the statute 

regulates only the offering of simulcasts, not termination of 

contracts.

COUNSEL

Scot L. Claus (argued), Vail C. Cloar, and Holly M. Zoe,

Phoenix, Arizona, for Plaintiffs-Appellants.

Patrick Irvine (argued) and Charles Markle, Fennemore 

Craig P.C., Phoenix, Arizona; Mark Brnovich, Attorney 

General; Kelly M. Wagner, Assistant Attorney General; 

Office of the Attorney General, Phoenix, Arizona; for 

Defendants-Appellees.
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 5

OPINION

HURWITZ, Circuit Judge:

The central issue in this case is whether the Interstate 

Horse Racing Act of 1978, 15 U.S.C. §§ 3001–3007 

(“IHA”), preempts Arizona Revised Statutes (“A.R.S.”) § 5-

112(U), a statute governing “simulcasts” of horse races. We 

conclude that it does not, and that the plaintiffs’ other facial 

constitutional attacks on the Arizona law also fail. We 

therefore affirm the district court’s denial of the plaintiffs’ 

motion for a preliminary injunction.

I.

A. The Arizona Statutory Scheme

Arizona law generally prohibits gambling, with several 

exceptions. See A.R.S. §§ 5-112, 13-3305(A), 13-3301(6). 

“Pari-mutuel wagering,” a system that distributes among 

successful bettors “the total amount wagered less the amount 

withheld under state law,” is the only legal form of gambling 

on horseracing. See id. § 5-101(23). That wagering can 

occur only at the live-racing track of a permittee, or at 

licensed off-track betting sites (“OTBs”), id. § 5-112(A), 

(H), sometimes referred to as “additional wagering 

facilities” or “teletracks,” see id. § 5-101(1); Ariz. Admin. 

Code § R19-2-401(12).1

 OTB wagering typically involves 

a “simulcast,” defined in Arizona law in pertinent part as 

“the telecast shown within this state of live audio and visual 

signals of horse [races] conducted at an out-of-state track or 

1 A bettor can wager “within Arizona on a racing program conducted 

at an authorized track within Arizona regardless of whether the racing 

program is telecast to the teletrack location.” Ariz. Admin. Code § R19-

2-401(14) (defining “teletrack wagering”).
6 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

the telecast shown outside this state of live audio and visual 

signals of horse [races] originating within this state for the 

purpose of pari-mutuel wagering.” A.R.S. § 5-101(26). But, 

no provision of Arizona law expressly conditions OTB 

wagering on the use of a simulcast. Simulcasts are regulated 

by the Arizona Department of Gaming and the Arizona 

Racing Commission. See id. §§ 5-107, 5-108; Ariz. Downs 

v. Ariz. Horsemen’s Found., 637 P.2d 1053, 1056-57, 1060 

(Ariz. 1981); see also Ariz. Admin. Code § R19-2-419.

The Arizona statute at issue in this case requires that 

“[a]ny simulcast of live racing into this state that originates 

from outside” Arizona “must be offered to each commercial 

live-racing permittee . . . and additional wagering facility” in 

the state. A.R.S. § 5-112(U). The statute also prohibits a 

“provider of simulcasts originating from outside” Arizona 

from engaging in “any anticompetitive or deceptive 

practice.” Id. The same requirements and proscriptions 

apply to providers of simulcasts originating from the 

racetracks of Arizona live-racing permittees.2 Id. § 5-

112(T).

B. The Interstate Horse Racing Act

In the IHA, Congress stressed that “the States should 

have the primary responsibility for determining what forms 

of gambling may legally take place within their borders.” 

15 U.S.C. § 3001(a)(1). However, “in the limited area of 

interstate off-track wagering on horseraces,” Congress found 

“a need for Federal action to ensure States will continue to 

cooperate with one another in the acceptance of legal 

2 Other states have similar laws. See Mich. Comp. Laws § 431.318; 

Idaho Code § 54-2512(12)(a)–(c); Ohio Rev. Code Ann. 

§ 3769.089(B)(1)(a), (D); Fla. Stat. § 550.6305(9)(g)(1).
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 7

interstate wagers.” Id. § 3001(a)(3); see id. § 3001(b) 

(stating legislative policy “to regulate interstate commerce 

with respect to wagering on horseracing, in order to further 

the horseracing and legal off-track betting industries”). To 

that end, the IHA provides that an “interstate off-track wager 

may be accepted by an off-track betting system only if 

consent is obtained from” four parties: the host racing 

association, the relevant horsemen’s group in the host state, 

the host racing commission, and the racing commission in 

the state where the off-track wager is placed.3 Id.

§ 3004(a)(1)–(3). Interstate off-track wagering is otherwise 

prohibited by federal law. Id. § 3003.

C. Facts

Monarch Content Management is a simulcast purchaser 

and sales agent for racetracks. Monarch has a “Simulcast 

Wagering Contract” with TP Racing (“Turf Paradise”), one 

of three live-racing permittees in Arizona. Monarch 

provides simulcasts to Turf Paradise’s live-racing track and 

OTBs, access to the betting pools of out-of-state racetracks 

for the races broadcast, and betting information. Monarch’s 

simulcasts include jockey, horse, and trainer information, 

interviews, analysis, and graphics; Monarch facilitates this 

content and controls how races are bundled for distribution. 

3 An “off-track betting office” is “any location within an off-track 

State at which off-track wagers are accepted,” and an “off-track betting 

system” is “any group which is in the business of accepting wagers on 

horseraces at locations other than the place where the horserace is run, 

which business is conducted by the State or licensed or otherwise 

permitted by State law.” 15 U.S.C. § 3002(7), (8); see also id. § 3002(9) 

(defining “host racing association”), (10) (“host racing commission”), 

(11) (“off-track racing commission”), (12) (“horsemen’s group”).
8 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

Laurel Park Racing Association is a Maryland racetrack, 

whose races Monarch simulcasts.

Arizona Downs also runs a live-racing track and OTBs. 

In 2018, Monarch agreed to provide simulcasts at Arizona 

Downs’ live racetrack, but declined to provide simulcasts to 

Arizona Downs’ OTBs. Laurel Park followed suit and 

refused to allow Arizona Downs’ OTBs to simulcast its 

races, or to accept pari-mutuel wagers from Arizona Downs’ 

OTBs. Monarch and Laurel Park claim that “the location 

and character” of Arizona Downs’ OTBs would dilute “the 

Monarch wagering product” and compromise their business 

interests.4

After A.R.S. § 5-112(U) was enacted in 2019, Monarch 

and Laurel Park sued the Arizona Department of Gaming, 

the Arizona Racing Commission, and various state officials, 

alleging that the statute is preempted by the IHA and facially 

violates the First and Fourteenth Amendments, the dormant 

Commerce Clause, and the Contracts Clause.5

 The plaintiffs 

sought a temporary restraining order against the statute’s 

enforcement; the district court converted that application 

into a motion for a preliminary injunction and denied it, 

finding that the plaintiffs were unlikely to succeed on the 

merits.

4 Like other racetracks, Arizona Downs relies heavily on its OTBs 

to generate revenue. Monarch’s refusal to provide its content deprives 

Arizona Downs’ OTBs of about 42% of the Arizona market for interstate

horseracing simulcasts.

5 Plaintiffs also alleged that A.R.S. § 5-112(U) violates the Arizona 

Constitution, but do not challenge the district court’s rejection of that 

claim in this appeal.
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 9

II.

We have jurisdiction over this appeal of the district 

court’s denial of a preliminary injunction under 28 U.S.C. 

§ 1292 and review for abuse of discretion. Cuviello v. City 

of Vallejo, 944 F.3d 816, 825–26 (9th Cir. 2019). “A 

plaintiff seeking a preliminary injunction must establish that 

he is likely to succeed on the merits, likely to suffer 

irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is 

in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7, 20 (2008).

III.

A. Preemption

There is no express preemption provision in the IHA. 

See 15 U.S.C. §§ 3001–3007. But, under the Supremacy 

Clause, U.S. Const. art. VI, cl. 2., even if a federal law lacks 

an express provision for preemption, state law is preempted 

“to the extent of any conflict with a federal statute.” Crosby 

v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) 

(cleaned up). The plaintiffs assert that the Arizona statute is 

preempted because it conflicts with the IHA. “Conflict 

preemption” is present either “where it is impossible for a 

private party to comply with both state and federal law,” or 

“where under the circumstances of a particular case, the 

challenged state law stands as an obstacle to the 

accomplishment and execution of the full purposes and 

objectives of Congress.” Id. at 372–73 (cleaned up); see also 

Nation v. City of Glendale, 804 F.3d 1292, 1297 (9th Cir. 

2015) (“Conflict preemption consists of impossibility and 

obstacle preemption.”). We must be “cautious” when “a 

federal statute is urged to conflict with state law regulations 

within the traditional scope of the state’s police powers,” and 
10 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

therefore “start with the assumption that a state’s historic 

police powers will not be superseded absent a ‘clear and 

manifest purpose of Congress.’” Chae v. SLM Corp., 

593 F.3d 936, 944 (9th Cir. 2010) (quoting Wyeth v. Levine, 

555 U.S. 555, 565 (2009)).

1.

On their faces, the IHA and the Arizona statute regulate 

different actors and activities. Under federal law, before an 

Arizona “off-track betting system” can accept an “interstate 

off-track wager” on Laurel Park’s races, Laurel Park must 

consent as the “host racing association,” and the Arizona 

Racing Commission must consent as the “off-track racing 

commission.” 15 U.S.C. §§ 3002(9), 3004(a)(1), (3). Under 

state law, if Monarch wishes to simulcast (provide a live feed 

of racing to a live-racing permittee or OTB for purposes of 

pari-mutuel wagering) in Arizona, it must offer its signals to 

all live-racing permittees and OTBs in the state. A.R.S. § 5-

112(U). The IHA does not address how the states can 

regulate simulcasts, and the Arizona statute does not address 

Laurel Park’s statutory right to consent before interstate 

wagering on its races can be conducted. Thus, it is not 

facially “impossible” to comply with both laws. See Crosby, 

530 U.S. at 372–73.

The plaintiffs cite their agreement to make common 

business decisions and assert that A.R.S. § 5-112(U) 

requires Monarch to provide access to wagering on Laurel 

Park’s races without Laurel Park’s consent. It does not. The 

Arizona statute simply requires Monarch to offer “[a]ny 

simulcast of live racing” to each live-racing permittee and 

OTB in the state if it offers that simulcast to anyone in 

Arizona—it says nothing about providing access to the parimutuel betting pools for Laurel Park’s races. See A.R.S. § 5-

112(U). Although simulcasts are offered “for the purpose of 
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 11

pari-mutuel wagering,” id. § 5-101(26), only Laurel Park 

can consent to wagering on its races, not Monarch, see 

15 U.S.C. § 3004(a)(1)–(3). Nothing makes it facially 

“impossible” for the plaintiffs to comply with both statutes. 

See Crosby, 530 U.S. at 372–73; see also Gulfstream Park 

Racing Ass’n, Inc. v. Tampa Bay Downs, Inc., 479 F.3d 

1310, 1312 n.3 (11th Cir. 2007) (per curiam) (agreeing with 

Florida Supreme Court that the IHA does not preempt the 

state’s requirement that permitholders accepting wagers on 

simulcasts make those simulcasts available to other eligible 

permitholders (citing Gulfstream Park Racing Ass’n, Inc. v. 

Tampa Bay Downs, Inc., 948 So. 2d 599, 607–08 (Fla. 

2006))).

2.

The plaintiffs also argue that A.R.S. § 5-112(U) 

frustrates the intent of the IHA because the federal act 

contemplates that the host racing association can consent to 

wagering on “an off-track betting system” basis, 15 U.S.C. 

§ 3004(a), while the State asserts that it will withhold 

consent for wagering on all Laurel Park races that are 

simulcast into Arizona if those signals are not offered 

equally to all Arizona live-racing permittees and OTBs.

“We discern congressional objectives by ‘examining the 

federal statute as a whole and identifying its purpose and 

intended effects.’” Chae, 593 F.3d at 943 (quoting Crosby, 

530 U.S. at 373). Put differently, we “consider carefully 

what Congress was trying to accomplish.” Id. at 944; see 

Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607 

(2011) (“[A] high threshold must be met if a state law is to 

be preempted for conflicting with the purposes of a federal 

Act.” (cleaned up)). We start from the premise that the IHA 

pointedly left intact the states’ “primary responsibility for 

determining what forms of gambling may legally take place 
12 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

within their borders,” thus preserving their traditional police 

powers. 15 U.S.C. § 3001(a)(1); see Artichoke Joe’s Cal. 

Grand Casino v. Norton, 353 F.3d 712, 737 (9th Cir. 2003) 

(noting that “the regulation of gambling lies at the heart of 

the state’s police power” (cleaned up)). However, for the 

“limited” purpose of ensuring the states’ cooperation in the 

acceptance of interstate wagers, Congress allowed interstate 

off-track horserace wagering only upon the obtaining of the 

four statutory consents. 15 U.S.C. §§ 3001(a)(3), (b), 

3004(a)(1)–(3).

In arguing that the Arizona statute conflicts with the 

intent of the IHA, Monarch and Laurel Park rely on 

Horseman’s Benevolent & Protective Association v. 

DeWine, 666 F.3d 997 (6th Cir. 2012). That case involved 

an Ohio statute providing that the host horsemen’s 

organization could not “unreasonably” withhold its consent 

to interstate wagers; if the consent were withheld “without 

substantial merit,” the Ohio racing commission could 

authorize wagering on out-of-state races with only the 

consent of the host racing association. Id. at 1000 (citing 

Ohio Rev. Code Ann. § 3769.089(G)). The Sixth Circuit 

noted that the “horsemen’s veto is an integral part of the 

Act,” which the Ohio statute would “negate.” Id. at 1000–

01. Because the Ohio law allowed the “host racing 

association to consent to interstate off-track betting in the 

absence of a written agreement with the horsemen’s group,” 

it directly conflicted with the IHA. Id. at 1000.

The Sixth Circuit case provides no succor to the 

plaintiffs here. As that court recognized, the IHA grants the 

host racing association, the host horsemen’s group, the host 

racing commission, and the off-track racing commission 

each an absolute veto over interstate off-track wagering. Id. 

at 1000–01; see 15 U.S.C. § 3004(a)(1)–(3). Although “[a]n 
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 13

interstate off-track wager may be accepted by an off-track 

betting system” with the consent of those four parties, 

15 U.S.C. § 3004(a)(1)–(3), none is ever required to consent. 

Even if, as the State contends, the Arizona Racing 

Commission will choose to withhold its consent to interstate 

wagering unless simulcasts of the affected races are made 

equally available to all live-racing permittees and OTBs, the 

IHA contains no “clear and manifest purpose” to limit the 

Commission’s veto.6 Arizona v. United States, 567 U.S. 

387, 400 (2012) (cleaned up); see also Chae, 593 F.3d 

at 944; 15 U.S.C. § 3001(a)(1), (3). Regardless of the 

Arizona statute, Laurel Park retains all rights granted by the 

IHA because no wagers can be placed on its races in Arizona 

over its objection.7 See Horseman’s Benevolent & 

Protective Ass’n, 666 F.3d at 1000–01.

B. First Amendment

The plaintiffs argue that A.R.S. § 5-112(U) is an 

unconstitutional regulation on commercial speech and a 

forbidden content-based restriction. The arguments fail.

Our inquiry begins, and ultimately ends, with whether 

A.R.S. § 5-112(U) regulates speech. See Expressions Hair 

Design v. Schneiderman, 137 S. Ct. 1144, 1150 (2017); see 

6 We note that such a construction of the Arizona statute is not 

required by the plain text, and no Commission decision is before us. See 

Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104, 1107–08 (9th Cir. 2016).

7 The plaintiffs argue for the first time on appeal that A.R.S. § 5-

112(U) conflicts with the requirement that “any off-track betting office 

shall obtain the approval of[] all currently operating tracks within 

60 miles,” 15 U.S.C. § 3004(b)(1)(A). We decline to address this issue 

in the first instance. See Davis v. Nordstrom, 755 F.3d 1089, 1094–95 

(9th Cir. 2014).
14 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

also Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1175 

(9th Cir. 2018). If a “law’s effect on speech [is] only 

incidental to its primary effect on conduct,” there is no 

“abridgment of freedom of speech . . . to make a course of 

conduct illegal merely because the conduct was in part 

initiated, evidenced, or carried out by means of language, 

either spoken, written, or printed.” Expressions Hair 

Design, 137 S. Ct. at 1151 (second quoting Rumsfeld v. 

Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 62 

(2006)); see Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 

138 S. Ct. 2361, 2373 (2018) (“The First Amendment does 

not prevent restrictions directed at commerce or conduct 

from imposing incidental burdens on speech.” (cleaned up)).

We assume arguendo that Monarch’s simulcasts are 

expressive in certain respects. However, the Arizona statute 

does not regulate that expressive content, but rather only 

Monarch’s conduct—the “offer” to sell simulcasts to liveracing permittees and OTBs. A.R.S. § 5-112(U). The

statute’s requirement that Monarch must make simulcasts 

available on equal terms is plainly incidental to the statute’s 

focus on Monarch’s non-First Amendment business 

practices. See Expressions Hair Design, 137 S. Ct. at 1150–

51. As the Supreme Court has explained, “a law requiring 

all New York delis to charge $10 for their sandwiches” is a 

regulation of conduct, even though “in order to actually 

collect that money” a seller will have to conform its speech 

to communicate the price. Id. Here, although Monarch must 

offer simulcasts to new customers to comply with A.R.S. 

§ 5-112(U), the statute does not affect any expression in 

those simulcasts. Id. at 1151.

Rather, the statute is unconcerned with the content of 

Monarch’s simulcasts, and does not differentiate based on 

the identity of a provider. Although Monarch is required to 
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 15

offer its product more broadly than it wishes, the statute does 

not regulate what Monarch says, only to whom Monarch 

must offer its simulcasts when doing business in Arizona. 

As the plaintiffs acknowledge, the plain purpose of A.R.S. 

§ 5-112(U) is to increase the number of simulcasts, not 

restrict them. And, because a simulcast is the telecast of a 

race “for the purpose of pari-mutuel wagering,” the statute 

does not apply when Monarch offers the same content in 

Arizona for any other purpose.8 A.R.S. §§ 5-101(26), 5-

112(U).

C. Fourteenth Amendment

If a law “implicates no constitutionally protected 

conduct,” a facial vagueness challenge under the Due 

Process Clause of the Fourteenth Amendment can succeed 

only if the law “is impermissibly vague in all of its 

applications. A plaintiff who engages in some conduct that 

is clearly proscribed cannot complain of the vagueness of the 

law as applied to the conduct of others.” Vill. of Hoffman 

Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494–95 

(1982); see also Holder v. Humanitarian L. Project, 

561 U.S. 1, 18–19 (2010). “The degree of vagueness that the 

Constitution tolerates . . . depends in part on the nature of the 

enactment. Thus, economic regulation is subject to a less 

strict vagueness test.” Vill. of Hoffman, 455 U.S. at 498; see 

8 Although the plaintiffs raised a compelled speech argument below, 

they did not develop that argument on appeal, so we decline to consider 

it. See Ventress v. Japan Airlines, 747 F.3d 716, 723 n.8 (9th Cir. 2014). 

Nor have they argued on appeal that the commercial act of offering 

simulcasts is expressive conduct, or that the Arizona law fails the 

“rational basis review that courts apply to non-speech regulations of 

commerce and non-expressive conduct.” Retail Dig. Network, LLC v. 

Prieto, 861 F.3d 839, 847 (9th Cir. 2017) (en banc); see United States v. 

Swisher, 811 F.3d 299, 310–13 (9th Cir. 2016) (en banc).
16 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

also IDK, Inc. v. Clark County, 836 F.2d 1185, 1198 (9th 

Cir. 1988) (“The absence of a significant first amendment 

interest is, however, fatal to a facial challenge of a business 

regulation for vagueness unless the regulation is vague in all 

possible applications.”).

Because A.R.S. § 5-112(U) does not regulate speech, we 

apply “a less strict vagueness test” and easily conclude that 

the statute is not facially invalid.9 Vill. of Hoffman, 455 U.S. 

at 494–95, 498. Monarch seeks to offer its simulcasts to 

some live-racing permittees and OTBs in Arizona, but not to 

others—and that conduct is plainly proscribed. See id.; see 

also Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019) 

(“[A]s a general matter, a defendant who cannot sustain an 

as-applied vagueness challenge to a statute cannot be the one 

to make a facial vagueness challenge to the statute.”); Castro 

v. Terhune, 712 F.3d 1304, 1311 (9th Cir. 2013) (same).

The statute also defines “an anticompetitive or deceptive 

practice” as including “charg[ing] excessive or unreasonable 

fees,” and lists relevant factors. A.R.S. § 5-112(U)(1). We 

routinely find similar language constitutionally sufficient. 

See, e.g., Wash. Mercantile Ass’n v. Williams, 733 F.2d 687, 

692 (9th Cir. 1984). Even when considering an as-applied 

challenge, the Supreme Court has upheld a statute that 

criminalized selling “goods at ‘unreasonably low prices for 

the purpose of destroying competition or eliminating a 

competitor,’” citing “the additional element of predatory 

intent alleged in the indictment and required by the Act [as] 

further definition of the prohibited conduct.” United States 

9 Contrary to the plaintiffs’ assertions, the criminal penalties in 

A.R.S. § 5-112(K) apply only to a violation of the article “with respect 

to any wagering or betting,” and would not apply if Monarch’s provision 

of simulcasts violated § 5-112(U).
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 17

v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 29, 32–33, 35, 37 

(1963) (quoting 15 U.S.C. § 13a). The Arizona law similarly 

directs the Commission to determine whether an agreement 

has “the purpose of securing an excessive or unreasonable 

fee,” or “purpose or effect of artificially inflating prices 

beyond reasonable market rates.” A.R.S. § 5-112(U)(2), (3). 

Because at least some sufficiently definite applications are 

plainly possible, we need not consider the plaintiffs’ 

hypotheticals about future enforcement. See Nat’l Dairy, 

372 U.S. at 32; Humanitarian L. Project, 561 U.S. at 21.

D. Dormant Commerce Clause

The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, has 

“a ‘negative’ aspect that denies the States the power 

unjustifiably to discriminate against or burden the interstate 

flow of articles of commerce.” Or. Waste Sys., Inc. v. Dep’t 

of Envtl. Quality of Or., 511 U.S. 93, 98 (1994). This socalled “dormant” Commerce Clause prohibits the states from 

imposing “a substantial burden on interstate commerce.” 

Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 

1144, 1148 (9th Cir. 2012) (emphasis omitted). However, 

“the commerce power of Congress is not dormant” when it 

authorizes state action, and “state actions which it plainly 

authorizes are invulnerable to constitutional attack under the 

Commerce Clause.” Ne. Bancorp, Inc. v. Bd. of Governors 

of Fed. Rsrv. Sys., 472 U.S. 159, 174 (1985). “The primary 

purpose of the dormant Commerce Clause is to prohibit 

statutes that discriminate against interstate commerce by 

providing benefits to in-state economic interests while 

burdening out-of-state competitors.” Ass’n des Eleveurs de 

Canards v. Harris, 729 F.3d 937, 947 (9th Cir. 2013) 

(cleaned up). Thus, when “a statute ‘regulates evenhandedly to effectuate a legitimate local public interest, and 

its effects on interstate commerce are only incidental, it will 
18 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING

be upheld unless the burden imposed on such commerce is 

clearly excessive in relation to the putative local benefits.’” 

Sullivan v. Oracle Corp., 662 F.3d 1265, 1271 (9th Cir. 

2011) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 

142 (1970)).

Although the IHA does not expressly authorize states to 

regulate simulcasts originating from out-of-state racetracks, 

see Ne. Bancorp, Inc., 472 U.S. at 174, it plainly preserves 

the states’ “primary responsibility” for legislating gambling 

within their borders, 15 U.S.C. § 3001(a)(1). We therefore 

discern no infringement of Congress’ commerce power here. 

Arizona treats out-of-state simulcast providers exactly the 

same as in-state providers. A.R.S. § 5-112(T), (U). And, the 

statute does not regulate extraterritorially; it merely sets the 

terms of doing business if Monarch chooses to provide 

simulcasts in the state. Because the plaintiffs provide no 

support for their claims that the statute otherwise poses an 

overwhelming burden on interstate commerce, see Nat’l 

Ass’n of Optometrists, 682 F.3d at 1150, 1155, we need not 

inquire into the relative benefits and burdens of the Arizona 

law, see Ass’n des Eleveurs, 729 F.3d at 951–52.

E. Contracts Clause

Because “not all state regulation of contracts gives rise 

to a Contracts Clause claim,” the threshold question is 

whether the law substantially impairs a contractual 

relationship. LL Liquor, Inc. v. Montana, 912 F.3d 533, 537 

(9th Cir. 2018); see U.S. Const. art. I, § 10, cl. 1. Monarch 

claims that the Arizona law impairs its right to terminate its 

contract with Turf Paradise while continuing to offer 

services to other customers in Arizona. Monarch’s argument 

is puzzling; nothing on the face of the Arizona statute affects 

whatever rights Monarch may have to terminate its contract 

with Turf Paradise. The statute regulates only the 
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 19

“offer[ing]” of simulcasts, not termination of contracts. 

A.R.S. § 5-112(U). Monarch’s contractual rights are not 

impaired simply because its contract with Turf Paradise now 

subjects Monarch to new regulation in other respects. See 

Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 

(1978); RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 

1148–50 (9th Cir. 2004).

IV.

Because the plaintiffs have not shown a likelihood of 

success on the merits, the district court did not abuse its 

discretion in denying a preliminary injunction.10

AFFIRMED.

10 We therefore need not address the remaining Winter factors. See

Winter, 555 U.S. at 20; All. for the Wild Rockies v. Pena, 865 F.3d 1211, 

1223 (9th Cir. 2017). Monarch requests judicial notice of Commission 

meeting minutes and a letter denying an administrative appeal. Because 

these documents are irrelevant to Monarch’s facial challenge, we deny 

the motion.