Montana’s robocall law violates First Amendment rights, 9th Circuit panel rules

Montana’s law prohibiting different types of robocall telemarketing violates the First Amendment, a federal appeals court has ruled.

The appeals court determined that the law was a content-based restriction on speech that was not drafted with sufficient precision to satisfy First Amendment review.

The law prohibits automated telephone calls for the following purposes:

1. Offering goods or services for sale;
2. Conveying information on goods or services in soliciting sales or purchases;
3. Soliciting information;
4. Gathering data or statistics;
5. Promoting a political campaign or any use related to a political campaign.

Firm using robocalls for political messages argued law restricts free speech rights

Victory Processing, a Michigan company that offers political consulting services, challenged the constitutionality of the Montana law in federal court. A federal district court judge upheld the statute, finding that it furthered the state’s compelling interest in protecting residential tranquility and privacy.

On appeal, a three-judge panel of the 9^th U.S. Circuit Court of Appeals unanimously reversed in Victory Processing, LLC v. Fox. The panel agreed with the lower court that the law was clearly content-based, but that it furthered a compelling government interest in protecting residential privacy.

9th Appeals panel: Robocall law not narrowly tailored enough

However, the appeals court also determined the law was not narrowly tailored enough. The appeals court determined that the law was impermissibly underinclusive, because it regulated only five different types of robocalls: “By singling out only five topics of robocalling for regulation – including messages related to political campaigns – the Robocall Statute leaves consumers open to an unlimited proliferation of robocalls on other topics.”

For example, the appeals court pointed out that the robocall law does not prohibit calls related to government services or charitable solicitations. “This underinclusiveness raises doubts about whether the Robocall Statute aims to address the problems caused by robocalling or instead to hinder discussion of certain topics.”

The appeals court also said the law was too overinclusive, because it targeted robocalls involving political speech.

Court says no evidence of scams with calls related to political campaigns

The court noted that when Congress passed the Telephone Consumer Protection Act, there was plenty of evidence of unsolicited commercial calls that sometimes lead to scams on unsuspecting consumers. There was not similar evidence of problems caused by calls related to political campaigns.

“By regulating categories of robocalling that have not been shown to pose a threat, the Robocall Statute is overinclusive in its efforts to further Montana’s compelling interest in protecting privacy,” the appeals court wrote.

The 9^th Circuit’s decision is similar to the result reached by the 4^th Circuit in Cahaly v. Larosa (2015). In that decision, the 4^th Circuit invalidated South Carolina’s robocall statute.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).