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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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