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Political group takes ‘robocall’ law challenge to SCOTUS

April 4, 2017

A political advocacy group that wants to strike down Indiana’s ban on robocalls has asked the Supreme Court of the United States to overturn the state law it calls the most restrictive in the nation.

“Who is a court to tell us how we have First Amendment rights to communicate with people?” asked Paul Caprio, President of Patriotic Veterans Inc., which is challenging the state law banning political groups from using automatic dialing technology to call Hoosiers.

The 7th Circuit Court of Appeals ruled against Patriotic Veterans and upheld I.C. §24-5-14-5 in January, holding that the state had a legitimate interest in blocking unwanted automatically dialed phone calls. The court wrote, “Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place, and manner restriction.”  

Illinois-based Patriotic Veterans staged a news conference Tuesday at the Indianapolis office of Barnes & Thornburg LLP to announce the filing of a petition for certiorari asking the U.S. Supreme Court to take its appeal of the 7th Circuit’s ruling. Patriotic Veterans argues the statute creates a content-based restriction on speech and is a valid time, place and manner restriction.

Barnes partner Mark Crandley argues the statute cannot survive strict scrutiny under the Supreme Court ruling in Reed v. Gilbert, 135 S.Ct. 2218, 2227 (2015). That case struck down an Arizona town’s ordinance regulating signs containing political speech as an impermissible content-based regulation.

Crandley noted federal courts have struck down state statutes in Arkansas and South Carolina that are similar to Indiana’s robocalling law.

“As Judge (Daniel) Manion has said at the 7th Circuit, if you censor based on topic, you’re still censoring,” Crandley said. “… We’ve got a matter of great public concern, First Amendment issues where other courts have decided the matter differently. We think this is a matter that should ultimately be decided by the Supreme Court.”

Under Indiana’s statute, a caller using automatic-dialing technology must first gain the consent of the recipient of the call using a live person.

Caprio said this makes issue advocacy that Patriotic Veterans and other groups engage in more expensive than saturation radio advertising, for instance.
The group in a statement said Indiana’s statute “reverses centuries of Supreme Court precedents by elevating commercial speech over First Amendment protected political/issue advocacy speech.”

“Our Patriotic Veterans did not fight in the rice paddies of Vietnam or the bone chilling cold of Korea to protect Indiana citizens’ right to be protected from ‘annoyance,’” national chairman Jim Nalepa said in a statement. “They did risk their lives to protect all Americans’ First Amendment rights to political free speech and redress of grievance from the government.”

Nalepa said the group has done issue advocacy robocalls in Illinois and Ohio, and Caprio estimated the group has been active in 35 states. He said the group does not solicit contributions through the calls, but connects constituents with lawmakers on issues for which it advocates. “It’s not just focused on the veterans … but rather, delivering that message to the public as a whole,” Nalepa said. “These are issues we believe the general public, the American public, needs to know, and needs to know are important for our veterans.” He said robocalls are an effective and efficient way to deliver that message.

Patriotic Veterans leaders took exception to the 7th Circuit ruling that held the state’s ban wasn’t an attack on political speech. Circuit Judge Frank Easterbrook wrote in the court’s ruling that nothing in the statute disfavored political speech. “We don’t get it,” Easterbrook wrote. “The statute as a whole disfavors cold calls (that is, calls to strangers), but if a recipient has authorized robocalls then the nature of the message is irrelevant.”

“I’m bothered by the court decision because the First Amendment right of our veterans trumps what they call an annoyance,” Nalepa said. “We did not fight for the First Amendment so we could be called an annoyance.”

“For the last seven years in our opinion, the attorney general of Indiana, their office … has been on what we consider to be an unconstitutional wild goose chase at taxpayer expense.” He said because there is a Do-Not-Call List in the state, the prior prohibition against robocalling should be rescinded.

The attorney general’s office did not immediately reply to a message seeking comment Tuesday.

Caprio said much of the work Patriotic Veterans has done involves calls that ask if the recipient would like to be connected to their lawmaker regarding a particular issue.

“Legislators decided they didn’t want to get calls anymore,” he said of the law’s origin. “That’s why you have this law on the books in the state of Indiana, and let me tell you something, if the attorney general says this is not correct, we have the evidence.”

Asked what that evidence was, Caprio said, “Conversations with specific groups in the state of Indiana who were there at the time. … I’m not going to name names.”

Caprio said the Alexandria, Virginia-based Center for Competitive Politics has helped finance this lawsuit and recruited Barnes & Thornburg.

“The grassroots people should have a voice, too,” he said.
 

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