April 18, 2017

Seventh Circuit Affirms Indiana Ban on Robocalls

Category: Indianapolis Law Club, Settlements & Decisions | Author: | Share:

In Patriotic Veterans, Inc. v. Greg Zoeller, Attorney General of Indiana, a veterans’ group challenged Indiana’s anti-robocall statute arguing that it violated the First Amendment, applied to the states by the Fourteenth Amendment. The veterans group relied on a recent U.S. Supreme Court decision, Reed v. Gilbert, 135 S.Ct. 2218 (2015), which struck down an Arizona town ordinance regulating the content of signs, and a 4th Circuit decision that, relying on Reed, found South Carolina’s anti-robocall statute to be unconstitutional. The Seventh Circuit was unpersuaded.

Indiana forbids recorded phone messages placed by automated dialing machines unless “(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; 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). Plaintiff maintains that the option given by subsection (b)(2) is prohibitively expensive, so that as a practical matter the statute forbids robocalls in the absence of advance consent by the recipient. We shall assume that this is so. Yet the requirement of consent is not content discrimination, so plaintiff focuses attention on three statutory exceptions:

This section does not apply to any of the following messages:

(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.

(3) Messages advising employees of work schedules.

Plaintiff tells us that the statute as a whole disfavors political speech and therefore entails content discrimination, as Reed understood that phrase. 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. The exceptions collectively concern who may be called, not what may be said, and therefore do not establish content discrimination.

No one can deny the legitimacy of the state’s goal: Preventing the phone (at home or in one’s pocket) from frequently ringing with unwanted calls. Every call uses some of the phone owner’s time and mental energy, both of which are precious. Most members of the public want to limit calls, especially cell-phone calls, to family and acquaintances, and to get their political information (not to mention their advertisements) in other ways. Federal law severely limits unsolicited calls to cell phones, 47 U.S.C. § 227(b)(1)(A)(iii), and the FTC maintains a do-not-call registry for landline phones, just as the Postal Service maintains a no-junk-mail list. These devices have been sustained against constitutional challenge. Limits on unsolicited faxes have been sustained on similar reasoning.

Everyone has plenty of ways to spread messages: TV, newspapers and magazines (including ads), websites, social media (Facebook, Twitter, and the like), calls from live persons, and even recorded spiels if a live operator first secures consent. Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place, and manner restriction. Because Indiana does not discriminate by content—the statute determines who may be called, not what message may be conveyed—these decisions have not been called into question by Reed.

Lesson

Unconsented robocalls are still illegal in Indiana with minor exceptions.

Read the full February 23, 2017 Law Club Handout or listen to the recording here.