The Indiana Supreme Court has held the state can continue enforcing a ban on automated robo-calls, with four justices finding that enforcement does not violate the Indiana Constitution’s free speech rights.
The majority ruled Thursday in the case of State of Indiana v. FreeEats.com, et al., No. 07S00-1008-MI-411, which involves a Brown Circuit case that began in 2006 when automated phone messaging operator FreeEats.com sought to overturn the Indiana Autodialer Law that banned unsolicited calls with automated messages. This case focused on a company making the calls on behalf of the Economic Freedom Fund during the 2006 congressional campaign, and FreeEats.com argued that the state requirement of using a live operator on the phone before any prerecorded message could be delivered was a free speech infringement.
Special Judge Kenneth Todd had granted in part and denied in part a preliminary injunction request from FreeEats.com and the state appealed, presenting this case for the justices’ consideration.
Writing for the 4-1 court, Justice Steven David held that the live-operator requirement does not violate free speech rights or the right to participate in political speech. Although the trial court didn’t address the First Amendment question and the justices declined to consider that, they did expand on the court’s rationale in why that claim would likely fail. The Indiana justices relied on an 8th Circuit Court of Appeals decision in 1995 and found the Indiana statute is content-neutral and that the restriction on speech is made through private channels to reach private residences.
The court found the Autodialer Law serves a significant government interest in trying to prevent unwanted calls, and the statute leaves open many other forums of communications that could be used to send the same message. FreeEats’ concerns about increased costs don’t invalidate the statute, the court said.
“A conclusion that a statute violates the state constitution when it increases the economic costs to engage in political expression, without any showing that the right to political expression no longer serves its purpose, would be unsound,” David wrote. “Although the Autodialer Law’s live-operator provision is a less-than-ideal requirement for FreeEats, it is not a material burden on its right to engage in political expression.”
Justice Frank Sullivan disagreed with the majority, agreeing with the special judge that the statute in this case imposes an unconstitutional material burden on political speech under the state and federal constitutions. He wrote a 15-page dissent explaining his disagreement, saying he would hold the law fails to satisfy the level of intermediate scrutiny applicable to content-neutral laws, that the statute isn’t narrowly tailored, and that it conflicts with precedent from the Supreme Court of the United States.