(Reuters) - Raise your hand if you like receiving robocalls from political campaigns and pollsters. Anyone?
Yeah, I didn’t think so. Political robocalls are an annoying subset of those intrusive spam communications that state and federal lawmakers have tried to curtail with statutes like the Telephone Communications Privacy Act. When those laws have faced challenges alleging that they impede callers’ First Amendment rights, courts, for the most part, have found that anti-robocall laws are constitutionally viable as long as they don’t target particular content. In the last couple of months, however, two federal appellate courts have struck down a 2015 amendment to TCPA that carves out an exception for government debt collection efforts. The 4th U.S. Circuit Court of Appeals led the way last April in American Association of Political Consultants v. FCC (923 F.3d 159), holding that the TCPA’s debt-collection exception violates the Free Speech Clause. The 9th Circuit followed in June, ruling in Duguid v. Facebook (926 F.3d 1146) that the exception is content-based and cannot survive strict scrutiny.
And now a provision of Montana’s state law restricting robocalls has also been struck down as a violation of the First Amendment. On Tuesday, the 9th Circuit ruled in Victory Processing v. Fox (2019 WL 4264718) that Montana cannot bar robocalls related to political campaigns – one of the five categories of robocalls Montana’s law prohibits.
“Regulating robocalls based on the content of their messaging presents a more severe threat to First Amendment freedoms than regulating their time, place and manner,” wrote Judge Richard Paez for a panel that included Judge Ronald Gould and U.S. District Judge Janis Jack of Corpus Christi, Texas, sitting by designation. “In particular, prohibiting political robocalls strikes at the heart of the First Amendment (and) disproportionately disadvantages political candidates with fewer resources,” the court found.
The 9th Circuit agreed with arguments by Montana Attorney General Tim Fox that the state has a compelling public interest in protecting residents’ privacy by regulating robocalls, including intrusive calls from political campaigns. But it also said that because the regulation targets speech based on its particular content, the law was presumptively unconstitutional. Montana, according to the 9th Circuit, had to show that its prohibition on political robocalls was narrowly tailored to serve the state’s interest in the privacy of its residents.
Victory, a Michigan political consulting firm that lost this case on summary judgment in the trial court (307 F.Supp.3d 1109), argued in its brief to the 9th Circuit (2018 WL 3018729) that Montana lawmakers could have enacted less restrictive limits on political robocalls, such as establishing a do-not-call registry or requiring disclosure of the caller’s identity. But nothing in the legislative history of the Montana law, Victory argued, demonstrated that the state sought to tailor its ban on political robocalls narrowly.
Montana responded (2018 WL 4007955) that its law does not ban automated calls to the public from political campaigns. Such calls are allowed, it said, if a live operator obtains permission from the call recipient to play the recorded message. That’s the same system Montana has in place for sales calls, commercial promotions and nonpolitical polling, the state said, which shows that the law isn’t simply restricting political robocalls. “In Montana, the method of delivery, not the message, is the target,” the state argued.
The 9th Circuit looked to a 2015 decision from the 4th Circuit, Cahaly v. Larosa (796 F.3d 399) that struck down a South Carolina prohibition on political robocalls. The 4th Circuit held in Larosa that the South Carolina law was both underinclusive, because surveys show that residents consider commercial robocalls to be a bigger intrusion than political calls, and overinclusive, because the statute allows the proliferation of other sorts of spam calls. Montana’s law, according to the 9th Circuit, suffers the exact same deficiencies.
“If Montana’s quarrel with robocalling is indeed with the method, rather than the content, of the calls, then its robocall statute is underinclusive,” the court wrote. “By singling out only five topics of robocalling for regulation — including messages related to political campaigns — the robocall statute leaves consumers open to an ‘unlimited proliferation’ of robocalls on other topics.” Montana has not explained why political robocalls are more intrusive than, say, charitable solicitations, which “raises doubts about whether the robocall statute aims to address the problems caused by robocalling or instead to hinder discussion of certain topics.”
Montana AG Fox issued a statement on the decision, which he called a disappointment: “My staff and I will fully review this decision and determine if there’s an appeal path going forward, or if Montana’s legislature may need to address statutory issues during its next session.”
Victory counsel Blake Johnson of the Bruning Law Group didn’t respond to my email.