Judge rules Arkansas political robocall ban unconstitutional

By Kristin Danley-Greiner | Aug 17, 2016

LITTLE ROCK, Ark. (Legal Newsline) - A federal judge for the Eastern District of Arkansas has declared an Arkansas state law prohibiting political robocalls unconstitutional.

David Powers with Clark Hill PLC told Legal Newsline that the prohibition was passed in 1981, but the statute has been "suspect" for some time.

“In fact, the previous Arkansas attorney general, Dustin McDaniel, issued an advisory opinion in 2011 concluding that the statute which ‘expressly prohibits all speech related to political campaigns via a particular medium . . . is highly constitutionally suspect,’” Powers said.

Arkansas Code states that it is “unlawful for any person to use a telephone for the purpose of offering any goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods or services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the call number.”

Plaintiffs Victor Gresham and Conquest Communications Group LLC claimed that the statute violated the First Amendment. The plaintiffs wanted to conduct automated telephone calls in Arkansas, including surveys, messages concerning voting, express advocacy calls and other types of calls affiliated with political campaigns. However, they could not do so because of the statute prohibiting robocalls.

The federal court examined the statute only as it pertained to political campaigns and declared that it didn’t apply to political robocalls.

“The federal district court found ‘that the statute is a content-based restriction on speech, which means it is subject to strict scrutiny’ and that ‘it is a rare case that survives strict scrutiny,’ Powers said.

The Arkansas Attorney General Leslie Rutledge's office argued that the statute protected recipients from unwanted and intrusive speech in their homes, protected recipients from repeated and unwanted intrusions and prevented the seizure of phone lines that could interfere with emergency calls being placed or received.

The court, relying on precedent from the U.S. Court of Appeals for the Eighth Circuit, said those reasons were substantial, but not compelling.  

“Because the state did not prove that the regulation ‘advances a compelling state interest and is narrowly tailored to that interest,” the court held that the statute as applied to calls made in connection with a political campaign is unconstitutional. This was a clear call for the court,” Powers said.

Powers clarified that this ruling only applies to the portion of the statute related to political robocalls, as the court noted that the plaintiff did not challenge the commercial portion of the statute.

Laws governing robocalls vary by state and political campaigners who use robocalls must consider multiple regulations, he said, including the Federal Communications Commission’s Telephone Consumer Protection Act, Federal Election Commission disclaimer requirements and individual state laws, which is a state-by-state analysis.

“For example, some states have requirements that a live operator must introduce the call and obtain consent from the called party before delivering the robocall, and some require the party making the calls to obtain a permit,” Powers said.

“Many states also restrict the time of the day in which the calls may be made.”

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Clark Hill PLC U.S. District Court for the Eastern District of Arkansas

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