Public Law Monitor

Political Robocalls Lose Court Battle

August 5, 2016

Political robocalls can be an irritating feature of modern campaigns. As a result, at least twenty-two states have imposed some restrictions, from setting approved hours to call to requiring state- or phone company-issued permits. Legal challenges to those bans have started finding some success. On July 27, 2016, a federal court in Arkansas struck down a state law passed thirty-five years ago that banned political robocalls. The statute made it unlawful to offer goods or services for sale “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages.

For the ban to be permitted under the First Amendment of the Constitution, lawyers representing the state of Arkansas needed to show the speech restriction advanced a compelling government interest and did so in the least restrictive way. The state attorney general’s office defended the robocall prohibition as an effort to protect people’s privacy interests and protect them from unwanted intrusions into their homes. However, U.S. District Judge Leon Holmes disagreed, writing “Banning calls made through an automated telephone system in connection with a political campaign cannot be justified by saying that the ban is needed to residential privacy and public safety when no limit is placed on other types of political calls that also may intrude on residential privacy or seize telephone lines.”

The Arkansas decision is the second time in less than a year that a state law banning the calls has been tossed out, after a federal court overturned South Carolina's ban last year on the same grounds.

This latest decision from Arkansas contrasts with an Indiana decision issued in April. District Judge William T. Lawrence of the U.S. Court for the Southern District of Indiana reaffirmed Indiana’s ban on automated telephone calls for political purposes in Patriotic Veterans Inc. v. State of Indiana, et al.

In that case Judge Lawrence ruled Indiana’s statute “is content neutral and is a valid time, place, or manner restriction on speech, and, accordingly, it does not violate the First Amendment.” A political action committee called Patriotic Veterans Inc. had brought the challenge after the 7th Circuit Court of Appeals ruled against the organization in 2013, holding that Indiana’s law was not preempted by the federal Telephone Consumer Protection Act. That Act exempted calls from politicians, public service announcements, and "informational" calls.

Indiana Attorney General Greg Zoeller has been a zealous critic of political robocalls and a defender of the state’s statute. In March, Zoeller warned political campaigns to adhere to state telephone privacy laws and refrain from robocalling residents.

Taken together, the recent rulings suggest that if states want to ban political robocalls, courts will require that they ban all robocalls in a content neutral way.

Joshua Claybourn is counsel with the firm’s Evansville office. He advises clients in matters of business and corporate law, governmental services and public finance.