Court strikes down Montana law barring political robocalls

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By MATT VOLZ
Associated Press

HELENA, Mont. (AP) — A federal appeals court ruled on Tuesday that Montana can’t ban political robocalls in response to their content alone, marking the latest in a string of court decisions against U.S. states that are trying to restrict automated phone calls promoting political campaigns.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Montana’s law prohibiting political robocalls — recorded phone messages that advocate for a candidate or seek information for a political campaign — violates the First Amendment’s free-speech protections.

The court has previously upheld other state laws that regulate robocalls, such as those that aim to protect consumers from scams. But those laws took into account only how robocalls are made and not what they say, the judges said.

“In particular, prohibiting political robocalls strikes at the heart of the First Amendment,” Judge Richard Paez wrote in the opinion.

Unless an appeal changes the outcome, the ruling to restrict political robocalls in response to content alone will apply to the nine Western states in the 9th Circuit’s jurisdiction. The ruling is also in line with other court decisions, including an opinion from the 4th Circuit, which oversees four mid-Atlantic states and, in 2015, struck down a similar law in South Carolina.

District courts in Wyoming and Arkansas also have found political robocall laws unconstitutional in those states. The 7th Circuit, which includes three Midwestern states, upheld an Indiana anti-robocall law in 2017, but that court ruled Indiana’s statute did not discriminate by content — the law regulated who may be called, not the content of messages.

Debra Bernard, a partner at the law firm Perkins Coie who last year wrote an article on political robocalls for the National Law Journal, said the U.S. Supreme Court may want to weigh in on the issue in the future, given the important constitutional question it brings up.

“Any restrictions on political speech must be carefully scrutinized as such speech is one of the pillars of our democracy,” she said.

Montana passed its anti-robocall law in 1991, the same year the federal Telephone Consumer Protection Act became effective. The federal law bars political robocalls to mobile devices without the owners’ previous consent. But it does allow robocalls to landline phones, according to the Federal Communications Commission.

The Montana law, in contrast, called for a $2,500 fine for robocalls that are related to a political campaign, as well as calls that aim to sell a good or service, solicit information or gather data.

A Michigan company called Victory Processing sued, saying it wanted to use robocalls to engage in political speech in Montana in the future but was being unconstitutionally restricted in its speech

State attorneys defended the law as protecting Montana residents’ privacy and tranquility. The law isn’t an outright ban of robocalls, but requires a live operator to first announce the topic of a robocall, state officials argued.

A district judge ruled in favor of the law last year. But the 9th Circuit panel reversed that decision.

The judges disagreed with the state’s contention that the law doesn’t discriminate against political calls. The law doesn’t ban charitable solicitations, for example, Paez wrote.

“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,” the judge wrote.

Montana Attorney General Tim Fox said he was disappointed by the decision and that he vigorously defends Montana’s robocall restrictions.

“My staff and I will fully review this decision and determine if there’s an appeal path going forward, or if Montana’s Legislature may need to address statutory issues during its next session,” he said.

The ruling means Montana voters may receive more automated calls as the 2020 elections approach. Jess Mangan, Montana Commissioner of Political Practices, said the state’s campaign-finance laws apply to robocalls, and political committees will have to have attribution in the calls and report their spending on them.