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

  2. 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.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...