FAN 71.1 (First Amendment News) 4th Circuit Strikes Down Anti-Robocall Statute

Earlier today a three-judge panel of the Court of Appeals for the Fourth Circuit struck down South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446 (2014)). The unanimous opinion was written by Circuit Court Albert Diaz and joined in by Circuit Judges James A. Wynn, Jr. and Stephanie Thacker.

The case is Cahaly v. Larosa (4th Cir., Aug. 6, 2015) (Case #: 14-1651).

Here is the robocall message:

As you may have heard, Speaker of the House Nancy Pelosi is coming to South Carolina.

Do you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come campaign for her?

Press 1 if you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come and campaign for her.

Press 2 if you think incumbent Democrat Anne Peterson Hutto should not invite her fellow Democrat Nancy Pelosi to come and campaign for her.

Here is how Judge Diaz’s opinion begins:

Robert C. Cahaly, a self-described Republican political consultant, was arrested for alleged violations of South Carolina’s anti-robocall statute. After the charges were dismissed, Cahaly filed suit, challenging the statute on three First Amendment grounds: as an unlawful regulation of speech, as impermissibly compelling speech, and as unconstitutionally vague. Cahaly also sought damages from the law enforcement officials involved in his arrest (and the agency employing them), advancing claims under 42 U.S.C. § 1983 and state law for false imprisonment and malicious prosecution.

Under the content-neutrality framework set forth in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), we find that the anti- robocall statute is a content-based regulation that does not survive strict scrutiny. (footnote omitted)

Later, and drawing on the Reed opinion, Judge Diaz added:

The Supreme Court recently clarified the content-neutrality inquiry in the First Amendment context. In Reed, the Court explained that “the crucial first step in the content-neutrality analysis” is to “determin[e] whether the law is content neutral on its face.” 135 S. Ct. at 2228. At the second step, a facially content-neutral law will still be categorized as content based if it “cannot be ‘“justified without reference to the content of the regulated speech,”’ or . . . adopted by the government ‘because of disagreement with the message [the speech] conveys.’” Id. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

. . . .  The asserted government interest here is to protect residential privacy and tranquility from unwanted and intrusive robocalls. Assuming that interest is compelling, we hold that the government has failed to prove that the anti-robocall statute is narrowly tailored to serve it. Plausible less restrictive alternatives include time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists. 

. . .  In addition, the record contains evidence that the anti- robocall statute is overinclusive. The Defendants themselves cite to a report from a U.S. House of Representatives committee that concluded, “Complaint statistics show that unwanted commercial calls are a far bigger problem than unsolicited calls from political or charitable organizations.” H.R. Rep. 102-317, at 16 (1991). Yet the statute also targets political calls.

At the same time, the statute suffers from underinclusiveness because it restricts two types of robocalls– political and consumer–but permits “unlimited proliferation” of all other types. . . 

Because the statute does not pass muster under strict scrutiny, we affirm the district court’s judgment declaring it unconstitutional.

[ht: Tony Mauro]

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