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State Supreme Court's robo-calls ruling carries over to federal lawsuit

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A ruling by the Indiana Supreme Court upholding the state’s automated phone call ban has found its way into the briefing of a federal appeal challenging the same statute, and the attorneys disagree on whether the state justices adequately addressed a First Amendment issue.

The 7th Circuit Court of Appeals is considering the case of Patriotic Veteran, Inc. v. State of Indiana, No. 11-32-65, filed by the state attorney general’s office after U.S. Judge William Lawrence in Indianapolis blocked enforcement of Indiana Code 24-5-14-1, known as the Indiana Automatic Dialing Machine Statute. The appellate court decided in late December to allow the state to enforce the ban while appeal is pending on that case, which specifically focuses on whether the Indiana statute is pre-empted by a more lenient federal law involving out-of-state robo-calls.

But adding a wrinkle to that litigation is a separate state court decision Dec. 29 in the case of State of Indiana v. Economic Freedom Fund, FreeEats.com, et al., No. 07S00-1008-MI-411. The decision by the Indiana Supreme Court involves a Brown Circuit case that began in 2006 when automated phone messaging operator FreeEats.com sought to overturn the law banning unsolicited calls with automated messages. Justice Steven David wrote for the 4-1 court that the live-operator requirement does not violate free speech rights or the right to participate in political speech under the Indiana Constitution.

In its opinion, the majority noted that the trial court didn’t address the First Amendment question because it was not before the court. But the justices still stated why they believe that First Amendment argument is likely to fail. They relied on an 8th Circuit Court of Appeals decision from 1995 to find the Indiana statute is content-neutral and that the restriction on speech is made through private channels to reach private residences.

A day after the state court decision, attorneys in the Patriotic Veterans suit filed a notice of supplemental authority and noted that the Indiana Supreme Court only reviewed the law under the test applied by Article 1, Section 9 of the Indiana Constitution and “expressly refused to determine whether the ADMS violated the First Amendment of the federal constitution.”

Attorney Paul Jefferson with Barnes & Thornburg pointed to lone-dissenter Justice Frank Sullivan’s 15-page opinion which indicated Sullivan believes the state statute isn’t narrowly tailored and conflicts with Supreme Court of the United States precedent. Jefferson also noted that the state ruling isn’t final until it’s certified, after a possible rehearing request deadline is past.

In a letter filed with the 7th Circuit on Wednesday, the attorney general’s office argues that the state justices did adequately address the federal question even though it wasn’t officially before them.

“Although the Indiana Supreme Court initially suggested that the First Amendment claim was not properly before it, it nonetheless analyzed that claim and ultimately held it was ‘likely to fail’,” the AG’s letter states. “The Economic Freedom Fund decision thus squarely supports the State’s First Amendment arguments in this matter. Furthermore, though that decision was rendered at the preliminary injunction stage, the Indiana Supreme Court left no room for further evidentiary submissions to yield a different result.”

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

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