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Montana’s attorney general is reviewing the decision to see if an appeal is possible, or if lawmakers will need to take action.
A Montana law that restricts political robocalls violates First Amendment free speech protections, a federal appeals court has ruled.
The U.S. 9th Circuit Court of Appeals concluded that the state statute doesn’t meet a heightened legal standard for when “content-based” government restrictions on free speech are constitutional.
“Regulating robocalls based on the content of their messaging presents a more severe threat to First Amendment freedoms than regulating their time, place, and manner,” Judge Richard Paez wrote in a 19-page opinion filed on Tuesday.
“In particular, prohibiting political robocalls strikes at the heart of the First Amendment,” he added.
Montana Attorney General Tim Fox said in a statement that he had been “vigorously defending” the restrictions and was disappointed by the court’s decision. “My staff and I will fully review this decision and determine if there’s an appeal path going forward,” he said.
If the issue can’t be resolved in court, Fox added that the state legislature might need to take it up.
Montana lawmakers passed the state’s robocall law in 1991. The law bars people from using automated phone systems to call people if the recorded message that is played falls within five different categories, one of which covers political campaign activities.
There is a provision in the law that allows for these sorts of recordings to be played, but only after a live operator gets permission from the person receiving the call.
Victory Processing, a Michigan company offering political consulting and data gathering services nationwide, filed a lawsuit over the law. The company argued that the restrictions limited its ability to communicate with Montana voters and hampered its free speech.
A Montana District Court ruled in the state’s favor last year. The company appealed.
The 9th Circuit ruling says that Montana's robocall law is “plainly content-based,” in that it “explicitly targets certain speech for regulation based on the topic.”
That means the statute is subject to what’s known as “strict scrutiny.” For the law to clear this legal hurdle, Montana would need to prove that the statute is justified by a compelling state interest and is narrowly tailored toward achieving that goal.
But the state fell short. “The Robocall Statute’s restriction on political messages does not survive strict scrutiny,” Paez wrote. His opinion says Montana did demonstrate a compelling state interest in robocalls, given concerns about the “privacy and tranquility” of its residents.
The problem from the court’s perspective is that the law was not narrowly tailored and is instead written in a way that is both “underinclusive” and “overinclusive” in how it restricts the calls.
If the state sees robocalling methods as the problem, rather than the content of the calls, then the law is underinclusive, Paez wrote, because the regulations single out only five topics, including political calls. This leaves the door open for calls on a range of other topics.
The state argued that the law covered “virtually every conceivable subject of calling.” But Paez’s ruling highlights a number of areas it left untouched, like calls related to government services, medical information and charitable contributions.
Montana didn’t offer a reason, the judge wrote, for why an automated fundraising call from a political campaign is inherently more intrusive than a similar call from a charity.
“This underinclusiveness raises doubts about whether the Robocall Statute aims to address the problems caused by robocalling or instead to hinder discussion of certain topics,” he added.
The state also failed to present convincing evidence, the opinion says, that call topics the law does cover pose special privacy threats and deserve to be singled out.
Congress and researchers have flagged commercial calls and scams as especially problematic, the ruling notes. But it adds that: “Robocalls related to political campaigns, by contrast, have not been shown to pose a threat to individual privacy.”
In regulating calls not shown to present a special threat, the opinion goes on to say, the law “is overinclusive in its efforts to further Montana’s compelling interest in protecting privacy.”
Tuesday’s decision reverses the district court ruling in the case and sends it back to the lower court for further proceedings.
Last year, a Wyoming federal district court sided with Victory Processing in a First Amendment challenge by the firm against a similar robocall law in that state.
The opinion that the 9th Circuit issued this week mirrors a 4th U.S. Circuit Court of Appeals ruling from 2015, which declared restrictions South Carolina imposed on consumer and political robocalls were both underinclusive and overinclusive.
Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.