ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT