A federal judge in Wyoming has struck down a state law that bans the use of automated phone calls – commonly known as “robocalls”— by political operatives, capping off more than a year of litigation in federal court.
In a judgment handed down Monday in U.S. District Court in Cheyenne, Judge Alan Johnson ruled that Grand Rapids, Michigan-based polling firm Victory Processing LLC was justified by gathering information and polling by way of robocalling. Johnson concluded the state’s ban was “over inclusive” in that it “completely prohibits political speech through robocalls while allowing commercial speech under certain circumstances.”
The initial complaint, filed in June 2017, argued the ban violated the firm’s right under the First and Fourteenth amendments, arguing “’the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.’”
Monday’s judgement overrules Wyoming Attorney General Peter Michael’s arguments that the repeal of such a law would violate the privacy of the state’s residents, though the court acknowledged that state and federal law does indeed offer accommodations for one’s right to personal privacy.
“The Court recognizes that tranquility, well-being and peacefulness of the home is a substantial interest worth protecting,” Johnson wrote in his ruling. “There is simply no right to force speech into the home of an unwilling listener.”
However, he argued, the construction of Wyoming’s law made it so regulations on robocalls were overly restrictive, and as written placed robotic political speech at a disadvantage to commercial calls, like commercial sales calls.
Such commercial calls are permitted provided the recipient initiated the call, the number is not on the national do-not-call list or the caller has an established business relationship with the recipient.
However, political speech is not offered similar concessions and, because the privacy of Wyoming residents is considered a “substantial interest” under the law, rather than a “compelling interest” of the state, restrictions against robotic political speech are unconstitutional, Johnson ruled.
Neither the attorney general or David Dishaw, the owner of Victory Processing and a plaintiff named in both cases, could be reached for comment.
The legality of robocalls
Victory Processing LLC is now one for two in First Amendment challenges to robocall bans this year. In February, a federal district court judge in Montana ruled that the state’s more than two-decade ban on robocalls was constitutional, though enforcement of the law, according to the Billings Gazette, was rarely enforced. In that case, the judge ruled in favor of the Montana Attorney General’s Office’s claims that the repeal of such a law would be a violation of Montana residents’ privacy. Such a ban, that judge concluded, was not in violation of the private company’s First Amendment rights on the grounds calls could still be made if introduced by a human operator: thereby eliminating the argument for a blanket ban on political speech.
“In contrast to the Montana statute, it is unclear if the Wyoming statutes allow for any type of politically related robocall,” Johnson’s ruling reads.
The regulation of robocalls as a free speech issue has been a hotly debated topic in legal circles foryears. Laws applied at the state level have pushed national political campaigns to lobby for unified, federal legislation around robocalling. Other alleged abuses of robocalls, including their use in opposition of political opponents, spreading disinformation to specific demographics of voters to suppress turnout and other misuses of the system have been the subject of numerous debates in Washington. However, outright bans on robocalls have been looked upon with suspicion.
“Not all robocalls are annoying,” an article in a 2009 issue of the Michigan Telecommunications and Technology Law Review notes. “The government does not have an interest in stopping a public opinion poll from Rasmussen, or a “get out the vote” reminder from the voter’s identified political party. An outright ban would frustrate and block such informative uses of robocalls. A statute cannot “foreclose an entire medium of expression.’ The availability of other ways to deliver campaign messages may not save an outright ban.”
Monday’s ruling, one former campaign strategist told the Star-Tribune, could open the door to significant impacts on the outcome of close races. Bill Cubin, a campaign strategist in Wyoming who once worked on the campaign for Republican Ron Micheli, said that while the decision initially creates more questions than answers, it could potentially affect neck-and-neck races in Wyoming.
Cubin said out-of-state consultants working for political campaigns will often push for the use of robocalls in campaigns, due largely to their cost (20 percent of the cost of actual humans making phone calls) and their ability to get messages to a bunch of people quickly.
But robocalls are also considered a “marginal tool,” meaning tools that, in a close race, can be very effective through opinion-driving methods like push polls. These polls — attacks on a candidate disguised as questions — can create new avenues of attack for candidates and give those with money new avenues to sway public opinion about their opponents.
And, with no insight of each campaign’s methods, Cubin said such a practice could be difficult to rein in without additional oversight.
“In the end, it’s going to be impossible for state regulators to control this without direct knowledge of campaigns and their vendors,” he said.
Enforcement of the law in Wyoming is handled by the state Attorney General’s Office. However, like in Montana, enforcement appears to be quite lax and call volumes overwhelming.
According to the monthly Robocall Index – a data set maintained by California-based robocall blocking app YouMail – nearly 5 million robocalls were placed to Wyoming’s 307 area code in July. This comes in spite of both state law and the federal Telephone Consumer Protection Act that, according to the Wyoming State Public Service Commission, “places limits on unsolicited prerecorded telemarketing calls to landline home telephones, and all autodialed calls or prerecorded voice calls to wireless numbers, emergency numbers and patient rooms at health care facilities.”