Montana Lawmakers: Anti-Robocall bill gets an “A” for effort, but falls flat

Harrison Strows – The Ninth Circuit Court of Appeals recently struck down a Montana statute that sought to prohibit certain types of robocalls—namely, those that made commercial or political solicitations. The case was Victory Processing v. Fox, where the Ninth Circuit held that Montana’s anti-robocall law unconstitutionally violated the First Amendment. At first glance, this ruling may seem like judicial overreach; in reality, the Ninth Circuit merely invalidated a poorly written law. Montana’s law explicitly, and perhaps unnecessarily, restricted political speech—something United States Supreme Court’s precedent clearly prohibits.

The law had great intentions and was meant to give Montanans a bit of peace and tranquility in their lives, but when statutory text provides a list of restricted content that includes the words “related to a political campaign,” it is doomed from the start. Here is what Montana’s robocall law said, in part:

(1) A person may not use an automated telephone system, device, or facsimile machine for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number for the purpose of:

(a) offering goods or services for sale;

(b) conveying information on goods or services in soliciting sales or purchases;

(c) soliciting information;

(d) gathering data or statistics; or

(e) promoting a political campaign or any use related to a political campaign.

A quick glance at any summary of the United States Supreme Court’s controversial opinion in Citizens United v. FEC would lead anyone to conclude that Montana’s statute was poorly drafted. Citizens United made it abundantly clear that a law simply cannot restrict political speech and expect to survive First Amendment scrutiny. The takeaway here is not that the Ninth Circuit wants Montanans to continue to be burdened by robocalls; rather, Montana’s Legislature was not thoughtful in its creation of the statute.

The Supreme Court’s recent free speech precedent offers a body of caselaw that some scholars call “Lochnerian,” which is a sophisticated way of saying judicial overreach. This reflects the reality that the Court has increasingly used the First Amendment to invalidate laws meant to help ordinary citizens but inevitably do so by purposefully or practically interfering with the First Amendment. The Court broadly considers “speech” as being just about anything that conveys “information” to an audience. Furthermore, there is variance in the levels of protection given to different types of speech. For instance, laws that restrict commercial speech (like solicitations asking someone to buy something) have a great chance at survival compared to those that restrict political speech (like solicitations asking someone to vote for political candidates).

Robocalls are more than mere annoyances. They disrupt our lives and always seem to do so at the worst possible times. How many times have you heard your phone ring and gone out of your way to answer it out of fear you might miss the most important call of your life only to hastily pick up and hear a voice that sounds like Siri warning you that the IRS will be at your door by midnight unless you promptly provide some suspect call center with the keys to your financial identity? We all have. Those calls are the problem. Outlawing only commercial robocalls would solve the problem. Including an extra provision implicating politics was not helpful and proved to be fatal to the law.

Regulation is great for digital privacy, but unconstitutional regulation is useless. This Ninth Circuit decision should send a message to American lawmakers: hold off on mentioning politics in laws meant to help consumers survive in today’s identity-theft prone digital America.

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