dissenting.
The majority concludes that N.C. Gen. Stat. § 14-306.4 (2011) regulates protected speech and is unconstitutionally overbroad. Because I conclude the statute regulates conduct rather than speech, I respectfully dissent.
Plaintiffs argue that N.C. Gen. Stat. § 14-306.4 violates the First Amendment of the United States Constitution because (1) it is a content-based restriction on protected expression that fails strict scrutiny; and (2) it is overbroad, in that it criminalizes a substantial number of video games that are unrelated to gambling. I disagree. I would reverse the trial court’s order to the extent that it held N.C. Gen. Stat. § 14-306.4(a)(3)(i) is unconstitutional. I would affirm the order to the extent the trial court concluded that, in all other respects, 2010 N.C. Sess. Laws 103 is constitutional. I would also hold *316the trial court did not err in dissolving the preliminary injunction prohibiting enforcement of N.C. Gen. Stat. § 14-306.4.
The statute states in pertinent part:
(b) Notwithstanding any other provision of this Part, it shall be unlawful for any person to operate, or place into operation, an electronic machine or device to do either of the following:
(1) Conduct a sweepstakes through the use of an entertaining display, including the entry process or the reveal of a prize.
(2) Promote a sweepstakes that is conducted through the use of an entertaining display, including the entry process or the reveal of a prize.
N.C. Gen. Stat. § 14-306.4(b) (2011) (emphasis added). Subsection (a) of the statute defines “entertaining display”:
‘Entertaining display’ means visual information, capable of being seen by a sweepstakes entrant, that takes the form of actual game play, or simulated game play, such as, by way of illustration and not exclusion:
a. A video poker game or any other kind of video playing card game.
b. A video bingo game.
c. A video craps game.
d. A video keno game.
e. A video lotto game.
f. Eight liner.
g. Pot-of-gold.
h. A video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols not dependent on the skill or dexterity of the player.
i. Any other video game not dependent on skill or dexterity that is played while revealing a prize as the result of an entry into a sweepstakes.
N.C. Gen. Stat. § 14-306.4(a)(3) (emphasis added). “Sweepstakes” is also defined by the statute as “any game, advertising scheme or plan, or other promotion, which, with or without payment of any consid*317eration, a person may enter to win or become eligible to receive any prize, the determination of which is based upon chance." N.C. Gen. Stat. § 14-306.4(a)(5) (emphasis added).
A. Regulation of Speech
As the majority notes, the United States Supreme Court recently released Brown v. Entm’t Merchs. Ass’n, _ U.S. _, _, 131 S. Ct. 2729, 2733, 180 L. Ed. 2d 708, 714 (2011), in which the Court held that video games are protected speech under the First Amendment:
Like the protected books, plays, and movies that preceded them, video games communicate even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.
I, however, do not believe Brown applies to plaintiffs’ appeal. Rather, I conclude that N.C. Gen. Stat. § 14-306.4 regulates conduct not speech.
An ordinance similar to N.C. Gen. Stat. § 14-306.4 was recently challenged as an unconstitutional restraint on free speech in the United States District Court of the Middle District of Florida. Allied Veterans of the World, Inc.: Affiliate 67 v. Seminole County, Fla., 783 F. Supp. 2d 1197 (M.D. Fla. 2011) (hereinafter “Allied Veterans I”). There, the plaintiffs challenged an ordinance enacted in Seminole County, Florida that prohibited the use and possession of “ ‘simulated gambling devices,’ ” defined as devices which provide “ ‘a computer simulation of any game, and which may deliver or entitle the person or persons playing or operating the device to a payoff.’ ” Id. at 1201 (quoting Seminole County Ordinance 2011-1).
The plaintiffs in Allied Veterans I sold internet access for use by their customers on the plaintiffs’ desktop computers. Id. at 1200. The plaintiffs also provided their customers the opportunity to participate in a sweepstakes. Id. The customer had the option to play a video simulation of a casino game to learn whether the customer had won the sweepstakes prize. Id.
The plaintiffs challenged the Seminole County ordinance as violating the federal constitution arguing, inter alia, it was a content-based restriction on speech that fails strict scrutiny, and it was *318unconstitutionally vague. Id. at 1202, 1206. The district court rejected the plaintiffs’ First Amendment challenge holding that the ordinance regulated the plaintiffs’ conduct rather than their speech. Id. at 1202. The district court further held that because the plaintiffs’ conduct was clearly proscribed by the ordinance, they could not challenge the ordinance as being void for vagueness. Id. at 1207.
After the Supreme Court’s decision in Brown, supra, the plaintiffs in Allied Veterans I filed an interlocutory appeal. Allied Veterans of the World, Inc.: Affiliate 67 v. Seminole County, Fla., _ F. Supp. 2d _, 2011 WL 3958437 (M.D. Fla. Sept. 8, 2011) (No. 6:11-CV-155-ORL-28DAB) (hereinafter ‘Allied Veterans IT). In Allied Veterans II, the plaintiffs argued that in light of the Supreme Court’s holding in Brown the Seminole County ordinance was an impermissible restriction on free speech. Id. at _, 2011 WL 3958437 at 1. The district court again rejected the plaintiffs’ argument and held that Brown was inapplicable because the ordinance at issue regulated conduct, not speech. Id. The plaintiffs were free to provide their video games to their customers so long as the games were not associated with the sweepstakes payoff. Id. at _, 2011 WL 3958437 at 2.1 find this reasoning persuasive and applicable in this case.
Here, N.C. Gen. Stat. § 14-306.4 does not prohibit plaintiffs from allowing a customer to play plaintiffs’ video games. Rather, the statute prohibits plaintiffs from conducting or promoting their sweepstakes through the use of a video game. Plaintiffs are free to allow anyone to play their video games so long as the video games are not used to conduct or promote a sweepstakes. Because the statute merely regulates conduct and not speech, it is not subject to strict scrutiny, as plaintiffs contend. Rather, the law is subject to a rational basis review, whereby the law need only be rationally related to the State’s police powers. Rhyne v. K-Mart Corp., 358 N.C. 160, 181, 594 S.E.2d 1, 15 (2004).
Here, one of the Legislature’s stated purposes in enacting N.C. Gen. Stat. § 14-306.4 was to protect the morals of the inhabitants of our State from the “vice and dissipation” that is brought about by the “repeated play” of sweepstakes due to the use of “simulated game play,” similar to video poker, “even when [such game play is] allegedly used as a marketing technique.” 2010 N.C. Sess. Law 103. The protection of the morals of our State’s inhabitants is a legitimate government purpose. See State v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660, 664 (1960) (“The State possesses the police power in its capacity as a *319sovereign, and in the exercise thereof the Legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety and general welfare of society.”) I conclude the State’s prohibition of the use of “entertaining displays” that use actual or simulated game play for the promotion and conducting of sweepstakes is rationally related to this legitimate governmental purpose.
B. Overbreadth
Plaintiffs also argue that N.C. Gen. Stat. § 14-306.4 bans all video games from being used in promotional sweepstakes, including videos games unrelated to gambling, and is thereby unconstitutionally over-broad. I disagree.
Plaintiffs place much emphasis on the fact that consideration is not required to play their sweepstakes; free entries are available upon request. This fact, they argue, takes sweepstakes out of the realm of gambling and establishes that their sweepstakes are a legal activity. However, as this Court stated in Animal Prot. Soc. of Durham, Inc. v. State, “ [i]t is the [Legislature’s prerogative to establish the conditions under which bingo, lotteries, or other games of chance are to be permitted.” 95 N.C. App. 258, 269, 382 S.E.2d 801, 808 (1989) (concluding the plaintiffs’ free bingo game was properly regulated by the State under our gambling statutes as the Legislature defined “bingo,” in N.C. Gen. Stat. § 309.6 (1986), as a “game of chance,” and did not require payment of consideration to play the game). Thus, the fact that individuals can participate in plaintiffs’ sweepstakes and watch their video games without payment of consideration does not establish that the State is without power to regulate how sweepstakes are conducted.
“ ‘The overbreadth doctrine holds that a law is void on its face if it sweeps within its ambit not solely activity that is subject to governmental control, but also includes within its prohibition the practice of a protected constitutional right.’ ” Treants Enters., Inc. v. Onslow County, 94 N.C. App. 453, 458, 380 S.E.2d 602, 604 (1989) (quoting Clark v. City of Los Angeles, 650 F.2d 1033, 1039 (9th Cir. 1981), cert. denied, 456 U.S. 927, 72 L. Ed. 2d 443 (1982)). Plaintiffs argue that N.C. Gen. Stat. § 14-306.4 is overbroad because the law’s definition of “entertaining display” encompasses all video games, “from classic arcade games like Pac-Man to modern, story-driven video video games are protected speech. However, I conclude N.C. Gen. Stat. § 14-306.4 does not ban video games nor prohibit plaintiffs from allowing a customer to play their video games. Rather, *320the statute prohibits plaintiffs, or any person, from conducting or promoting a sweepstakes through the use of a video game. Plaintiffs are free to allow anyone to play their video games so long as the video games are not used to conduct or promote sweepstakes. The statute does not “include [] within its prohibition the practice of a protected constitutional right,” Treants Enters., 94 N.C. App. at 458, 380 S.E.2d at 604 (citation and quotation marks omitted), and thus is not overbroad.
I conclude N.C. Gen. Stat. § 14-306.4 is not a content-based restraint on protected expression and is not unconstitutionally over-broad. Accordingly, I would reverse the trial court’s order to the extent that it held N.C. Gen. Stat. § 14-306.4(a)(3)(i) is unconstitutional; I would affirm the order to the extent the trial court concluded that, in all other respects, 2010 N.C. Sess. Laws 103 is constitutional; and I would hold the trial court did not err in dissolving the preliminary injunction prohibiting enforcement of N.C. Gen. Stat. § 14-306.4.