The nonprofit group Patriotic Veterans filed a federal lawsuit challenging an Indiana law that restricts political speech via phone.
Indiana law bars prerecorded telephone calls that contain a political message, which violates the free speech rights of advocacy organizations such as the Illinois-based Patriotic Veterans, Inc. The group planned political calls in advance of the 2010 general election.
Pre-recorded phone calls are one of the most cost-effective ways a low-budget campaign can reach voters. This is not about reasonable restrictions on the hours that such calls may be made or the ability of citizens to opt out. Placing an outright ban on this form of political speech deprives Indiana residents of political information that many want to receive. Indiana’s law does not limit phone calls, or even the hours they may be made—it merely makes them more expensive, entrenching the existing political establishment.
In addition to the First Amendment problem raised by the Indiana statute, federal law and Federal Communications Commission regulations preempt enforcement of the unconstitutional Indiana statute, § 24-5-14-5 (the “Automatic Dialing Machine Statute” or “ADMS”), the plaintiff argues.
The suit names as defendants the state and Indiana Attorney General Greg Zoeller. Although the law has been on the books for over 20 years, it is only in the past four years that Zoeller and his predecessor, Steve Carter, have interpreted the law as limiting political speech rather than commercial calls.
Under Indiana law, evening auto-calls are already prohibited, so Hoosiers don’t have to worry about late night calls. Auto-hang-up technology is already required, so residents don’t have to worry about tied up phone lines. Calls to emergency workers are prohibited, so there are not safety issues.
A blanket ban prevents even calls to committed activists—preventing those who wish to receive information via a low-cost robocall from being informed about the political process. Some folks, especially seniors without easy Internet access, find robocalls helpful and informative.
The government claims its interest is preventing harassment, but under the challenged statute, a campaign, party, or political group may call Hoosier households with political messages every 90 seconds, 24 hours a day—as long as they use a live operator.
Requiring a live operator for calls helps big budget campaigns and establishment groups that can afford live operators, while silencing insurgent campaigns and grassroots groups without similar resources. Industry information suggests that live operator calls could be as much as 1,500 percent more expensive as robocalls, which often cost less than 2 cents per call.
Many city and county campaigns can only afford to conduct a poll using auto-dialer technology. These restrictions hurt challengers and other candidates challenging the status quo by protecting incumbents, who enjoy other trappings of office like the ability to send free, glossy mail to their constituents.
Less restrictive arrangements, including a potential “Do Not Call” list specific to political groups, should be sought instead of acceding to government control over what technology campaigns may employ. Candidates and groups who voluntarily join such efforts might be rewarded by voters, who may punish those who abuse robocall technology.
Judge William T. Lawrence of the United States District Court for the Southern District of Indiana issued an injunction in September of 2011 against enforcement of an Indiana law barring prerecorded telephone calls that contain a political message, holding that Federal law preempted the Indiana statutory regulation prohibiting automatic calls. In December of 2011, Judge Lawrence denied the state’s request for a stay of its order during the appeal.
In 2013, the 7th Circuit Court of Appeals ruled: “Because the district court decided the case on the basis of preemption, it never had reason to address the arguments regarding the constitutionality of the statute. We are a reviewing court and think that the argument would benefit from two‐tiered examination. We thus reverse the ruling on preemption and remand for an evaluation of whether Indiana’s statute violates the free speech rights protected by the First Amendment to the United States Constitution.”
Seventh Circuit Court of Appeals
- Reply Brief of Appellant (July 29, 2016)
- Brief of Appellee (July 15, 2016)
- Brief of Appellant (June 15, 2016)
- Seventh Circuit Court of Appeals Ruling (November 21, 2013)
- Brief of Appellee Patriotic Veterans, Inc. (December 28, 2011)
District Court for the Southern District of Indiana
- Entry on Motions for Summary Judgment (April 7, 2016)
- Plaintiff Patriotic Veterans, Inc.’s Citation of Supplemental Authority (August 10, 2015)
- Plaintiff’s Citation of Supplemental Authority (July 23, 2014)
- Plaintiff’s Response to Defendants’ Citation of Supplemental Authority (April 18, 2014)
- Defendants’ Notice of Supplemental Authority (April 11, 2014)
- Entry on Cross-Motions for Summary Judgment and Order Granting Permanent Injunction (September 27, 2011)