Sunday, August 6, 2017
The Eighth Circuit last week rejected a plaintiff's request for a temporary injunction against a Minnesota statute restricting robocalls. The court ruled that the plaintiff wasn't likely to succeed on his First Amendment claim.
The statute bans robocalls, except "(1) messages from school districts to students, parents, or employers, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules." A later amendment also exempts "messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind."
A political consultant challenged the law, arguing that, given the exceptions, it was an illegal content-based restriction on speech.
The Eighth Circuit disagreed, at least at this preliminary stage. The court first severed the military-veteran-donation exception from the rest of the statute. It then ruled that the other exceptions weren't content-based; instead, they were based on assumed implied consent of the target of the robocall:
[T]he permissions granted in the Minnesota statute do not reflect a content preference; they are based on an assumption of implied consent. The State does justify the statute in part based on an interest in protecting residential privacy against disruptive calls, but this interest is not grounded in a preference for certain content. Where a subscriber has impliedly consented to receipt of pre-recorded mesages, the caller may place a robocall about political campaigns, work schedules, or any other topic. Where there is no such implied consent, automated calls are banned entirely, regardless of their content. [The plaintiff] does not contend that the statute forbids him to communicate with any subscriber who has impliedly consented to receipt of his robocalls.
The court rejected the plaintiff's argument that Citizens United, Reed v. Town of Gilbert, or Matal v. Tam change this result. "[T]he statute does not prefer certain speech based on content, and does not disfavor certain ideas over others. The statute as a whole disfavors robocalls to strangers, but it allows them with consent. . . . The exceptions depend on the relationship between the caller and the subscriber, not on what the caller proposes to say."