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Restriction on Shady Election Night Robocall Not Unconstitutional

By William Peacock, Esq. on August 29, 2013 3:55 PM

Robocalls restrictions are constitutional because, seriously, who likes robocalls?

Okay, that isn't exactly the court's holding, but it is pretty close. This open-and-shut case was originally disposed of with a per curiam unpublished opinion, which is probably where it belongs.

But when the intervenor-United States asks to publish, you publish.

As for the case itself, a couple of political consultants, working for 2010 Republican gubernatorial candidate (and former governor) Robert L. Ehrlich's campaign, sent out a spam robocall to a whole bunch of Democratic voters on election day. The calls name-dropped POTUS and lead the recipients to believe that the Democrat had won (and thereby, possibly, steering a few away from the polls):

Hello. I'm calling to let everyone know that Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We're okay. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you.

It's almost hilarious, so long as you ignore the shady vote suppression factor, especially since the former governor is still former. Plus, some of the people involved with the calls were nailed in criminal court, so in retrospect, we can laugh a little about the comeuppance.

This case, however, was not a criminal matter. It was a $1,000,000 civil case against the individuals involved in writing and recording the call.

Julius Henson (also criminally convicted), his company Universal Elections, and UE employee Rhonda Russell were all found liable for violating the Telephone Consumer Protection Act, 47 U.S.C. § 227, which requires parties to disclose the person and phone number of the sponsor of a robocall.

Henson and his company appealed, contending, amongst other fruitless arguments, that the TCPA was an unconstitutional content-based restriction on free political speech.

Except, it really, really isn't. The statute, and its implementing regulation, applies to all "artificial or prerecorded" calls, not just political ploys. It is, per its plain text, content-neutral.

A content-neutral restriction on speech faces intermediate scrutiny, and will be upheld if "it furthers an important or substantial government interest ... and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to furtherance of that interest."

What's the interest here? For one, not being annoyed by robocalls. The Supreme Court calls this "[p]reserving the sanctity of the home," by allowing recipients to choose which calls to listen to. Identification requirements also reduce instances of fraud and help to enforce the TCPA itself.

As for narrow tailoring, the act merely requires the call to state the identity of the sponsor of the call, as well as a contact phone number. It's a minimal burden meant to protect the three aforementioned interests.

Like we said, it's a simple case. Our guess? The government simply wants to send a message to dissuade other election night tricksters.

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