Political consultant sues state over 'robocalls' ban

A Virginia political consultant filed a federal challenge Wednesday to an Arkansas law that outlaws "robocalls" in Arkansas, saying he wants to make automated calls on behalf of unspecified clients.

The lawsuit takes issue with parts of Arkansas Code Annotated 5-63-294, which has been on the books for many years and makes automated telephone solicitation, political or otherwise, a Class B misdemeanor punishable by civil penalties. In years past, consumers and even Pulaski County prosecutor Larry Jegley have complained that the law wasn't strong enough to deter annoying automated political calls.

But in the lawsuit, Victor Gresham of Columbia, Va., and his company, Conquest Communications Group LLC, notes that former Attorney General Dustin McDaniel issued an advisory opinion in 2011 holding that the provision in the law that prohibits such calls "in connection with a political campaign" was constitutionally "highly suspect."

In May 2010, attorney Ethan Nobles of Little Rock posted in First Arkansas News that McDaniel's chief deputy, Brad Phelps, said the law might not survive a federal First Amendment challenge. Phelps was quoted as saying that while the Arkansas law clearly applies to political campaign calls, it isn't clear whether the law is preempted by one or more federal statutes that frown on state laws restricting interstate calls.

Judd Deere, a spokesman for McDaniel's successor, Arkansas Attorney General Leslie Rutledge, said Wednesday that Rutledge is reviewing the lawsuit. It names her as the sole defendant, as the official with the "explicit authority" to enforce the law.

Gresham's lawsuit, assigned to U.S. District Judge Leon Holmes, said he wants to place automated telephone calls in Arkansas of a political nature that would include automated telephone surveys, get-out-the-vote messages, advocacy calls and others related to political campaigns. It says, "These automated telephone calls would play pre-recorded messages to individuals who answer the phone, as well as to an answering machine, voicemail, or other recording device recognized by the automated dialing system."

If a call dialed by an automated system was answered by a person, a "live operator" would speak with that person; otherwise, the pre-recorded message would play, the suit states.

Gresham also said he wants to engage in "telephone town hall" calls on behalf of political clients, in which people who answer the call can participate in a live forum with a politician.

Gresham contends that he has been "unlawfully restrained from engaging in political speech within Arkansas," citing the potential criminal enforcement by the attorney general's office. In 2006, Jegley complained that the penalties for a Class B misdemeanor -- up to 90 days in jail and a fine of up to $500 -- were "relatively nothing."

Jegley was responding at the time to an Arkansas Supreme Court justice's concerns about unauthorized automated calls about his campaign. The since-retired justice, Donald Corbin, said the recorded messages irritated voters, many of whom in turn called his home to complain. Corbin said some callers reported receiving more than a dozen of the calls in a single day. Corbin and his wife said they planned to seek federal legislation banning the automated calls.

The lawsuit filed Wednesday alleges that the provisions of the Arkansas law that are related to political speech "constitute an unconstitutional abridgement of Plaintiffs' free speech rights guaranteed by the First and Fourteenth Amendment to the United States Constitution."

The suit seeks a preliminary injunction preventing the state from enforcing the law and a declaratory judgment finding its political-speech provisions unconstitutional.

Gresham notes that "numerous courts across the country have held in similar situations" that statutes similar to the Arkansas Political Robocall Ban are content-based restrictions on speech and as such, cannot withstand "strict scrutiny" pursuant to a 2015 U.S. Supreme Court decision in a case called Reed v. Town of Gilbert.

Metro on 05/05/2016

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