Ninth Circuit Court says Montana can’t ban political robocalls

(CN) – Montana can’t outlaw political robocalls, the Ninth Circuit ruled Tuesday, finding the state’s law violates the First Amendment, hamstrings underdog candidates and fails to protect recipients from financial scams.

In past decisions, the Ninth Circuit has upheld laws restricting automated phone calls based on consumer protections regulating commercial speech and those that restrict the time, place and way robocalls are allowed. And the court has found that such laws apply to cellphones. But a three-judge panel drew the line Tuesday on Montana’s robocall statute, the first considered by the court that regulates such calls based on their content.

Montana passed a law regulating robocalls in 1991, the same year the federal government enacted the Telephone Consumer Protection Act. The law bars unsolicited automated phone calls in five categories, punishable by a $2,500 fine: offering goods or services, informing consumers of goods and services, soliciting information, gathering data or statistics and promoting a political campaign.

Michigan political consultant Victory Processing challenged the statute in 2017, claiming the law unfairly prevented it from engaging in political speech in Montana. Senior U.S. District Judge Charles C. Lovell found that while the law was based on the content of speech, and therefore implicated the First Amendment, Montana had a compelling interest to “protect the well-being, tranquility and privacy of the home” which justified the law.

On appeal, a three-judge panel for the Ninth Circuit disagreed. While the state is right to use the law to protect personal privacy, the panel found prohibiting political campaigns from using automated phone calls goes too far.

“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,” U.S. Circuit Judge Richard A. Paez wrote. “In particular, prohibiting political robocalls strikes at the heart of the First Amendment, as well as disproportionately disadvantages political candidates with fewer resources.”

Paradoxically, the panel also found the law doesn’t go far enough – by regulating only political robocalls, it leaves Montanans without a legal means to fend off robocalls on other topics. And that’s a problem, the panel found, because while automated calls about political campaigns don’t pose much threat to personal privacy, those trying to pull off financial scams do.

“By singling out only five topics of robocalling for regulation – including messages related to political campaigns – the robocall statute leaves consumers open to an ‘unlimited proliferation’ of robocalls on other topics,” Paez wrote in an opinion joined by U.S. Circuit Judge Ronald M. Gould and U.S. District Judge Janis Graham Jack, sitting by designation from the Southern District of Texas.

Failing to regulate robocalls regarding government services, charitable solicitations or medical information also exposes the law to First Amendment questions, the panel found. The judges sent the case back to Judge Lovell for further proceedings congruent with their ruling.

“Montana has offered no reason why, for example, an automated fundraising call from a political campaign is inherently more intrusive than a similar automated fundraising call from an apolitical nonprofit entity – both would tie up phone lines and answering machines in the exact same manner,” Paez wrote. “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.”

All three members of the panel were appointed by Bill Clinton.