Swiftboat mastermind, Bob Perry, loses another round in his effort to robocall Hoosiers with his campaign propaganda. Perry funded something called the “Economic Freedom Fund.” The Economic Freedom Fund hired FreeEats.com to robocall Hoosiers with pre-recorded messages attacking Mike Sodrel’s challenger (at the time), Baron Hill in Indiana’s 9th Congressional District.

This was a violation of IC 24-5-14. Indiana’s attorney general — a Republican, incidentally — filed suit in a state court to stop the violation by various “John Does” and, eventually, FreeEats specifically. FreeEats went running to the federal courts trying to get a ruling that Indiana’s state law was preempted by federal law, was a violation of the Commerce Clause, and was a violation of the First Amendment. The state asked the District Court to abstain from exercising jurisdiction under the Younger abstention doctrine — basically a doctrine telling federal courts to abstain from reviewing matters already under way in the state courts unless justice simply can’t or won’t be done in the state courts. The District Court declined to abstain because, due to various procedural factors, the state court would not render a decision prior to the (at the time) imminent 2006 elections. After exercising jurisdiction, the District Court declined to enter a preliminary injunction, finding that FreeEats was not likely to prevail on the merits — statutory and case law both suggested that states were allowed to act on robocalls if their actions were more restrictive than federal law.

Both parties appealed – FreeEats arguing that the preliminary injunction should have been issued and Indiana arguing that the federal court should have abstained. Today, the Seventh Circuit sided with the State, reasoning that the District Court should have abstained. Essentially, the compelling circumstances cited by FreeEats for exercise of federal jurisdiction were self-inflicted. First, the state court had been procedurally delayed by actions of FreeEats itself. Second, elections are regular, the anti-robocalling legislation had been on Indiana’s books since 1988, and FreeEats had suffered adverse rulings in North Dakota under a similar law 5 months prior to initiation of its federal action in this case. (The North Dakota case had been commenced in 2004.) Because the District Court shouldn’t have exercised jurisdiction, the Seventh Circuit Court of Appeals has vacated the ruling of the District Court with respect to the preliminary injunction.

The State’s enforcement action in the state court remains pending and, according to the Seventh Circuit opinion, a hearing was to be conducted on September 7, 2007.