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Robo-calls at issue in Indiana courts

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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, FreeEats.com 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 FreeEats.com 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.” •

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  1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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