Robo-calls at issue in Indiana courts

Back to TopE-mailPrintBookmark and Share

What started with a pre-recorded, autodialed phone call message four years ago during campaign season has now transformed into a court case challenging a little-used 22-year-old state statute on grounds that it violates free-speech protections of politically involved businesses.

The case comes from a line of litigation that’s been playing out in Indiana’s state and federal courts during the past several years, all involving what is and isn’t permitted under the Automatic Dialing Machines statute (ADMS), Indiana Code 24-5-14. That suit is ongoing even as a new federal suit in the Southern District of Indiana raises similar issues about how the law is applied here.

While it still remains at the trial court level, attorneys on the case wonder if this could be a sequel to one that brought an Indiana Supreme Court decision 18 months ago regarding the statute. However, that decision left open constitutional questions about how the law applies to political messages that may have some free-speech protections.

paul jefferson Jefferson

“This could be the case that allows the justices to resolve those constitutional issues they hadn’t ruled on before,” said Indianapolis attorney Paul Jefferson at Barnes & Thornburg, who is lead attorney on both the state and federal cases. “The Indiana law as it stands is that these types of calls are never allowed to be made. … That runs afoul of every notion of free speech we have, particularly when it comes to protected political speech.”

State suit success

Most significantly in the Brown Circuit case of State of Indiana v. Economic Freedom Fund, Inc., and John Does 3-10, No. 07C01-0609-MI-0425, a local judge declared the state statute unconstitutional in part, which could lead to a higher court ruling that redefines how it’s been applied.

Former Indiana Attorney General Steve Carter launched this suit in September 2006, the first time since the statute had been enacted in 1988 that the AG had enforced it. It was aimed at multiple companies that made these types of automated calls to potential voters prior to elections. The Virginia-based company used an artificially intelligent calling (AIC) system to contact residents throughout the country via telephone on behalf of its clients. The pre-recorded messages are interactive and ask residents to consent to the calls and messages that could be used to conduct polls in order to identify supporters of various political issues and candidates, as well as to encourage voting.

steve carter Carter

With the system, FreeEats can call 1.7 million Indiana residences in seven hours, with some numbers getting as many as three calls before messages are left on answering machines. None of those are made between the hours of 9 p.m. and 8 a.m., which is restricted by state law.

In this case, FreeEats used this system to disseminate a political message in Indiana for the conservative group Economic Freedom Fund out of California. One Indiana resident, John Vanderlippe, recorded the call he received and filed a complaint with the state. The AG sued after receiving 12 consumer complaints regarding automated calls happening statewide, and FreeEats later sued in federal court, though that case was eventually sent back to the state level.

Now, at issue in this case is how the statute is applied to more modern political speech methods that have come about since the statute was enacted.

Special Judge Kenneth G. Todd issued a significant ruling June 10, finding that the statute violates the freedom of speech provisions in the Indiana Constitution. He also found the AIC system used to obtain consent is just as efficient and effective as the statute’s existing requirements that consent be obtained from a live operator.

The ruling comes on a preliminary injunction only and isn’t a final ruling on the overall case. It still leaves the defendant on the hook for penalties that were the original basis for the suit.

“The state has identified that the sole purpose of the ADMS is a limitation on the total volume of automated calls,” Judge Todd wrote. “Such a limitation has the sole effect of limiting the political speech in question. It has no affect whatsoever on whether an individual receiver of the call might perceive the call to be annoying or a nuisance. Nor would the individual receiver of the call have a different opinion if the call were made by a live operator. Thus the effect of the ADMS to the extent that it requires such calls to be made by a live operator as opposed to an automated system, is to materially burden the political speech in question, not protect the peace and quiet of the Indiana residents in their homes.”

The company praised the ruling and urged the AG to rethink this litigation strategy. The AG’s Office has not yet filed an appeal, and litigation spokesman Bryan Corbin said attorneys are still reviewing the ruling to decide how to handle it.

A new opportunity?

But Jefferson thinks an appeal is imminent and that this could be a case that goes to the Indiana Supreme Court to address issues left unresolved in December 2008.

In that ruling in State of Indiana v. American Family Voices, et al., 898 N.E.2d 293, 296 (Ind. 2008), justices unanimously determined the state law on pre-recorded, autodialed calls isn’t limited to those placed to consumers with commercial messages. But they stopped short of deciding how the law applies to political messages.

“As can be easily inferred from the presence of the Democratic and Republican State Central Committees as amici in this case, this litigation raises questions as to the extent to which the Autodialer Law limits and may constitutionally limit the use of autodialers to convey political messages,” Justice Frank Sullivan wrote. “However, all parties agree that no such questions are before this Court at this stage of the litigation and we express no opinion with respect thereto.”

With FreeEats now working its way through state court, some wonder whether this could be a sequel to that decision giving the Supreme Court a new chance to weigh those constitutional issues.

Broader federal questions

As the state courts analyze how the Indiana Constitution and auto dialer statute interact, the issue remains pending and continues to be raised in federal court. A new suit filed June 10 – coincidentally the same day as Judge Todd’s state court ruling – raises more specific First Amendment claims about the statute.

The case, Patriotic Veterans v. State of Indiana, No. 1:10-CV-0723, involves an Illinois-based nonprofit that’s suing on claims that the state robo-call ban violates the group’s right to free speech by not allowing it to make political calls leading up to the November general election. Patriotic Veterans claims the Indiana law is preempted by a similar but a more lenient federal law on robo-calls in the Telephone Consumer Protection Act and Federal Communications Act of 1934. Unlike the state statute banning all prerecorded telemarketing calls unless the consumer has given consent, the federal law makes exceptions for nonprofit groups, telephone carriers, and politicians.

greg zoeller Zoeller

The nonprofit Center for Competitive Politics urges less-restrictive arrangements such as a potential “Do Not Call” list specific to political groups. Candidates, groups, and companies that voluntarily participate in a political-message do-not-call list could win favor with voters while a flat-out ban punishes everyone.

Twenty-eight states regulate political robo-calls, but the patchwork of restrictions varies greatly by state and only a few ban the calls outright.

Indiana Attorney General Greg Zoeller – who took over this area of litigation when he took office in 2009 – said he will work to protect the statute as written.

“Hoosiers have said in no uncertain terms that they detest robo-calls, don’t want to be disturbed by such intrusions – and they value the privacy that our state’s laws afford them,” he said

But some attorneys like Jefferson say the statute goes too far and presents constitutional issues, especially after the Citizens United decision by the U.S. Supreme Court in January found companies and organizations can’t be prevented from getting involved in political speech because of the First Amendment protections.

“These are complementary but not identical,” Jefferson said about the robo-call suits in Indiana’s state and federal courts. “There is a lot that’s unresolved and unsettled right now.”

The systems being questioned in these cases are tools that can benefit a greater good and shouldn’t be restricted, Jefferson contends. He said businesses could conduct instant polls on health-care issues in real time, and based on the tone and language of the person receiving a call, could quickly provide a lawmaker with immediate feedback needed to cast a vote. The same could be done for television ads and how candidates respond to ads issued by opponents, Jefferson said.

“It’s an effective way to engage in political dialogue, if used appropriately, and that,” he said, “is protected by the First Amendment.” •


Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.