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, 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.” •


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues