Robocalls refer to automated telephone messages that contained recorded messages. Telemarketers use them for a variety of reasons, including commercial, political, charitable and other purposes.
States have passed laws regulating robocalls, contending that they invade residential privacy and tranquility. However, at least two federal appeals courts have invalidated such legislation on First Amendment grounds.
4th Circuit ruled South Carolina’s robocall law violated First Amendment
The U.S. Court of Appeals for the 4th Circuit invalidated South Carolina’s law regulating robocalls on First Amendment grounds in Cahaly v. Larosa (2015).
The South Carolina law, enacted in 1991, imposed restrictions on robocalls made for consumer or political purposes – but not for other reasons. Because of this, the 4th Circuit deemed the law to be a content-based restriction on speech based on the U.S. Supreme Court’s latest articulation of the content discrimination principle in Reed v. Town of Gilbert (2015).
Because the law was content-based, the 4th Circuit applied strict scrutiny. The appeals court reasoned that even if the state of South Carolina had a compelling governmental interest in protecting residential privacy from robocalls, the statute was not narrowly tailored, because there were less speech-restrictive alternatives to banning such calls.
“Plausible less restrictive alternatives include time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists,” the 4th Circuit wrote.
9th Circuit struck down Montana’s robocall law
The 9th U.S. Circuit Court of Appeals reached a similar result in striking down Montana’s anti-robocall legislation in Victory Processing LLC v. Fox (9th Cir. 2019). Montana’s law singled out robocalls made for the following five purposes:
- Offering goods or services for sale;
- Conveying information on goods or services in soliciting sales or purchases;
- Soliciting information;
- Gathering data or statistics; and
- Promoting a political campaign or any use related to a political campaign.
The 9th Circuit ruled that Montana’s law was content-based because it treated types of robocalls differently based on their content. It deemed the law too underinclusive, writing: “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 9th Circuit 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.”
8th Circuit upheld Minnesota’s robocall law
However, the 8th U.S. Circuit Court of Appeals upheld Minnesota’s law on robocalls in Conquest Communications Group LLC v. Swanson (2017).
Minnesota’s law generally prohibited robocalls unless the calls relayed messages from school districts to students, parents or employees; messages to subscribers with whom the caller has a current business or personal relationship or messages advising employees of work schedules. Another part of the law provided that the legislation also did not apply to messages from nonprofit tax-exempt charitable organizations who sent messages for clothing donations for disabled U.S. military veterans.
While the law seems content-based under Reed v. Town of Gilbert, the 8th Circuit felt otherwise. “The statute as a whole disfavors robocalls to strangers, but it allows them with consent,” the appeals court wrote. “If a subscriber authorizes the automated calls, either expressly or impliedly, then the content of the message is irrelevant. The exceptions depend on the relationship between the caller and the subscriber, not on what the caller proposes to say.”
Because there is a circuit split regarding the constitutionality of anti-robocall legislation from a First Amendment perspective, the U.S. Supreme Court conceivably may address the issue soon.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled 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). This article was published on Dec. 20, 2019.