A federal judge on Wednesday struck down as unconstitutional an Arkansas law that bans automated telephone calls, known as robo-calls, from being placed to anyone in the state in connection with a political campaign.
The law that Arkansas legislators passed in 1981 also bans robo-calls to homes and businesses in the state in connection with the sale of goods and services, and gathering data. However, U.S. District Judge Leon Holmes said his ruling only prohibits law enforcement authorities from enforcing the part of the law that "applies to telephone calls made in connection with a political campaign."
In a footnote to his 11-page order, the judge noted, "The portion of this statute relating to goods and services does not apply to the plaintiffs, and they do not challenge it. The only portion of the statute at issue here is the portion relating to political campaigns."
The ruling frees Virginia political consultant Victor Gresham and his company, Conquest Communications Group LLC, who challenged the constitutionality of the law in a May 4 lawsuit, from being prosecuted for making automated calls to Arkansans this fall. Gresham said he wants to make automated calls on behalf of political clients that include telephone surveys, get-out-the-vote messages and advocacy calls.
Until Holmes' ruling, he was subject to being charged with a Class B misdemeanor for violating the Arkansas law, and if convicted, facing civil penalties.
The law in question -- Arkansas Code Annotated 5-63-204(a)(1) -- states:
"It is unlawful for any person to use a telephone for the purpose of offering any goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods or services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the call number."
The lawsuit named Attorney General Leslie Rutledge, as the chief law enforcement officer in the state, as the sole defendant. Her office defended the law in a hearing June 23. But a spokesman for Rutledge declined to comment on the ruling Wednesday evening, shortly after the ruling was filed and before having a chance to discuss it with attorneys for the office.
Holmes agreed with Gresham that the statute violates the First Amendment because it is a content-based restriction on speech.
Since the enactment of the 14th Amendment to the U.S. Constitution applied the First Amendment's liberty protections to the states, "the right to free speech has been held to apply in some way to schools, prisons, zoning ordinances, state regulation of lawyer advertising, state laws regarding defamation, obscenity laws, and to other governmental entities and in other circumstances too numerous to recount," Holmes said.
He said that to determine which governmental restrictions violate the right to free speech and which do not, "the courts have developed 'tests' for distinguishing which governmental restrictions on speech pass constitutional muster."
"As the case law has developed," he said, "different restrictions on speech are scrutinized under different standards," depending on the type of speech restricted, the type of restriction or the reasons for the restriction.
"The statute at issue here is a restriction on political speech which is, and has always been, at the core of the protection afforded by the First Amendment," he said, echoing a 2014 opinion by the 8th U.S. Circuit Court of Appeals in St. Louis, which has jurisdiction over federal rulings in Arkansas.
Holmes said that as a content-based restriction on speech, the Arkansas statute must be reviewed under the standard known as "strict scrutiny," which means that for it to stand, the state must prove that its restriction on speech advances a "compelling state interest" and "is narrowly tailored to serve that interest."
The attorney general's office argued that the compelling interests supporting the robo-call ban include protecting recipients of automated phone calls from unwanted, intrusive speech in their homes and preventing the tying up of telephone lines that could interfere with placing or receiving emergency calls.
Holmes said those privacy interests may be "substantial" but they are not "compelling," according to 8th Circuit precedent. And even if they were "compelling," he said, the Arkansas statute isn't narrowly tailored with respect to those interests.
"A statute is narrowly tailored if it targets and eliminates no more than the exact source of the 'evil' it seeks to remedy," Holmes wrote, citing case law. He noted that the 4th U.S. Circuit Court of Appeals, based in Cincinnati, held last year that a similar statute wasn't narrowly tailored to protect the government's purported interest in protecting residential privacy and tranquility because, while it restricted consumer and political calls, it allowed other types of automated calls.
"When the government restricts speech, the government bears the burden of proving the constitutionality of its actions," Holmes said.
"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 [protect] 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," he said.
Holmes added that the state failed to prove that less-restrictive alternatives to the ban, such as time-of-day limitations and do-not-call lists, are unavailable to protect privacy and public safety.
Metro on 07/28/2016