Tuesday, September 10, 2019
The Ninth Circuit ruled today in Victory Processing v. Fox that Montana's ban on political robocalls violates the First Amendment. The ruling strikes the ban.
Montana's robocall statute reads as follows:
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 . . . promoting a political campaign or any use related to a political campaign.
A robocall company sued, arguing that the provision violated free speech. The Ninth Circuit agreed.
The court ruled that the provision is a content-based restriction on speech, and that it fails strict scrutiny. The court said that while the state had a compelling interest for enacting the provision--the protection of personal privacy--the ban wasn't narrowly tailored to achieve that end. In particular, the court said that the ban was underinclusive with respect to protecting personal privacy, because it singles out only political robocalls and four other topics for robocalling, but "leaves consumers open to an 'unlimited proliferation' of robocalls on other topics. The court also said the ban was also overinclusive, in that it regulates only "categories of robocalling that have not been shown to pose a threat . . . ."
The ruling aligns with Cahaly v. Larosa, 796 F.3d 399, a 2015 Fourth Circuit case also striking a ban on political robocalling.