Federal Judge Reaffirms Ban On Political ‘Robocalls’ In Indiana

Dave Stafford for www.theindianalawyer.com

Just weeks ahead of Indiana’s presidential primary, a federal judge reaffirmed Indiana’s ban on automated telephone calls for political purposes.

The political action committee Patriotic Veterans Inc. failed to prove its First Amendment rights were violated under Indiana’s Automated Dialing Machine Statute, I.C. 24–5–14–1, which broadly prohibits autodialed telephone calls that announce recorded messages.

District Judge William T. Lawrence of the U.S. Court for the Southern District of Indiana granted summary judgment to the state Thursday in Patriotic Veterans Inc. v. State of Indiana, et al., 1:10-cv-723.

In ruling for the state and denying the PAC’s motion for summary judgment, Lawrence ruled Indiana’s statute “is content neutral and is a valid time, place, or manner restriction on speech, and, accordingly, it does not violate the First Amendment.”

Patriotic Veterans Inc. brought the current challenge after the 7th Circuit Court of Appeals ruled against the organization in 2013, holding that Indiana’s law was not preempted by the federal Telephone Consumer Protection Act.

Lawrence wrote in a footnote that a prior Indiana attorney general had found an exception for political calls under the Indiana law, but “Attorney General (Greg) Zoeller recognizes no such exclusion with regard to the IADMS and has expressly reminded Indiana’s political parties that the statute does not exempt political calls. He also has stated that he intends to actively enforce the statute’s provisions.”

Indiana’s May 3 primary is expected to play a larger-than-usual role in both the Democratic and Republican parties nominating contests. But Lawrence wrote that the Indiana statute does not unconstitutionally restrict speech, even though political callers are effectively banned from using robocalls.

“Contrary to the Plaintiff’s claim, the [Indiana law] does not ‘eliminate[] their ability to have a voice in the marketplace of ideas when elections, votes, or other dialogue of political importance occurs,’” Lawrence wrote. “The Plaintiff has pointed to evidence that the cost of live operator calls is about eight times more expensive … and that calls cannot always be made fast enough for the messages to be delivered in the time allotted.

“However, as the Defendants note, the Plaintiff has ample other means with which to deliver its message, including live telephone calls, consented to robocalls, radio and television advertising and interviews, debates, door-to-door visits, mailings, flyers, posters, billboards, bumper stickers, e-mail, blogs, [I]nternet advertisements, Twitter feeds, YouTube videos, and Facebook postings. The Plaintiff is not entitled to its first or best choice or even one that provides the same audience. Ample alternative channels of communication remain open to the Plaintiff.”

In a statement Friday, Zoeller called the ruling a victory for privacy rights.

“This important ruling ensures Indiana’s strict telephone privacy laws remain intact. Hoosiers value their privacy and do not want to be bombarded with unwanted robocalls. As I’ve said many times, robocalls are the tools of scam artists. There are plenty of legitimate, lawful ways to contact people and disseminate political information, but blasting out pre-recorded messages to thousands of numbers at a time with no regard for privacy is not one of them,” he said.

Zoeller said unwanted calls remain the top consumer complaint his office receives. Nearly 14,000 such complaints were received last year, most of which concerned robocalls. The penalty for violating the Indiana Auto Dialer law is up to $5,000 per call.

Last month, Zoeller warned political campaigns to adhere to state telephone privacy laws and refrain from robocalling residents leading up to the 2016 primary election and the general election on Nov. 8.