We’ve previously discussed First Amendment challenges to the TCPA and state law counterparts in the context of political speech here, here, and here. Recently, the Seventh Circuit rejected a nonprofit group’s argument that Indiana’s anti-robocall statute violated the First Amendment because it did not exempt robocalls involving political speech. Patriotic Veterans, Inc. v. Zoller, No. 16-2059, 2017 U.S.App. LEXIS 47 (Jan. 3, 2017).
Patriotic Veterans claimed that the Indiana statute disfavored political speech and, thus, violated the prohibition on “content discrimination” as enunciated in Reed v. Gilbert, 135 S. Ct. 2218 (2015). Patriotic Veterans, 2017 U.S.App. LEXIS 47, at *1-2. The Indiana statute bars callers from using an automatic dialer to deliver prerecorded messages unless (1) the telephone subscriber (or anyone living with the subscriber) has consented to receive such calls; or (2) “the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered.” Ind. Code § 24-5-14-5(b). The statute exempts: “(1) Messages from school districts to students, parents, or employees; (2) Messages to subscribers with whom the caller has a current business or personal relationship; and (3) Messages advising employees of work schedules.” Ind. Code § 24-5-14-5(a).
Plaintiff argued that, by not including a political speech exception, the statue disfavors political speech and thereby constitutes an unconstitutional content-based restriction. Patriotic Veterans, 2017 U.S.App. LEXIS 47, at *2-3. Writing for the court, Judge Easterbrook disagreed that the law violated the First Amendment: “We don’t get it. Nothing in the statute, including the three exceptions, disfavors political speech. The statute as a whole disfavors cold calls (that is, calls to strangers), but if a recipient has authorized robocalls then the nature of the message is irrelevant.” Id. at *3.
Plaintiff also argued that the First Amendment required Indiana to make an exception for political speech because the statute “was excessive in relation to its goal of protecting phone subscribers’ peace and quiet.” Id. at *4. In rejecting that argument, Judge Easterbrook distinguished the Indiana law from the South Carolina anti-robocall statue invalidated on First Amendment grounds in Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015). Patriotic Veterans, 2017 U.S.App. LEXIS 47, at *5. In Cahaly, the “Fourth Circuit concluded that drawing lines on the basis of the message presented, rather than (as Indiana’s law does) consent by the person to be called, is content discrimination prohibited by the First Amendment.” Patriotic Veterans, 2017 U.S.App. LEXIS 47, at *5. Here, Judge Easterbrook declared as “out of the question” plaintiff’s attempt to “take a content-neutral law and make it invalid by creating message-based distinctions.” Id.
In a passage sure to please the TCPA plaintiffs’ bar, Judge Easterbrook proclaimed that “[n]o one can deny the legitimacy” of Indiana’s goal of “[p]reventing the phone (at home or in one’s pocket) from frequently ringing with unwanted calls.” Id. In the context of Indiana’s content-neutral statute aimed at barring robocalls regardless of their content, the court thus reasoned that “[p]reventing automated messages to persons who don’t want their peace and quiet disturbed is a valid, time, place and manner restriction.” Id. at *7. Whether and how that reasoning would apply to the TCPA remains an open question, however, given the differences between the TCPA and Indiana statute.