In a lengthy opinion, the Indiana Supreme Court decided another round in the seemingly endless FreeEats autodialer litigation. (The fees generated in that case have to be breath taking.) The case begins back in 2006 when Bob Perry, author of the Swiftboat attacks on John Kerry, created something called the Economic Freedom Fund. The Economic Freedom Fund hired a company called FreeEats to use its robocall technology to attack Baron Hill in support of Mike Sodrel. Both of those guys are out of the political picture, but the lawsuit continues. (Reminded me of the “Born in the USA” lyrics, “I had a brother at Khe Sahn; fighting off the Viet Cong; They’re still there, he’s all gone.”)
Indiana’s autodialer law has a requirement that someone wishing to disseminate a prerecorded message over the telephone has to first obtain the consent of the recipient by using a live operator. This increases the costs of the autodialer in disseminating its message. The argument of the autodialer, FreeEats in this case, is that this raises its costs and impermissibly burdens its freedom of speech under Article 1, section 9 of the Indiana Constitution. The Indiana Supreme Court disagreed, concluding:
The Autodialer Law prevents FreeEats from sending prerecorded political messages without obtaining the telephone subscriber’s consent. FreeEats can obtain this consent prior to the call or at the outset of the call by using a live operator. FreeEats is correct in noting that its costs will increase if it complies with the live-operator requirement, but FreeEats fails to intro-duce any convincing argument that the result of the requirement is that its right to engage in po-litical expression no longer serves the purpose for which it was designed. Any content-neutral statute that incidentally affects political expression could conceivably increase the economic costs of the speaker. A conclusion that a statute violates the state constitution when it increases the economic costs to engage in political expression, without any showing that the right to politi-cal expression no longer serves its purpose, would be unsound. FreeEats and its clients are still free to engage in political expression and are free to use the AIC system to do so. Although the Autodialer Law’s live-operator provision is a less-than-ideal requirement for FreeEats, it is not a material burden on its right to engage in political expression.
Bravo!
I do not agree that the free speech clauses of the U.S. and Indiana Constitution do not require an exception for political speech when it comes to Indiana’s law prohibiting robocalls. After all, everyone assumes there has to be an exception for political calls when it comes to the no call list.
Although the federal court did not deal directly with that issue with respect to the First Amendment in a case it had (the focus was on the violation of a federal statute), it was pretty clear that Judge Lawrence was leaning that way and would have so ruled if he didn’t have an easier option – the statute.
I think it’s only a matter of time before you are going to see the federal courts require states to allow political robocalls per the First Amendment.