ILNews

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, 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.” •

ADVERTISEMENT

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT