Virginia political consultant Victor Gresham contends he has a constitutional right to target Arkansas residents with automated political "robocalls" and that an Arkansas law is interfering with that right.
The state says its law regulating automated prerecorded telephone calls is designed to protect Arkansans from unwanted intrusions that disrupt the tranquility in their homes and to protect household telephone lines from being tied up by robots that call repeatedly and take up all the message space on answering machines.
U.S. District Judge Leon Holmes heard arguments Thursday from attorneys for both parties and must decide whose needs take priority. On one hand, he has to consider First Amendment protections on political speech; on the other hand, he must consider the privacy rights of individuals and the state's "compelling interests" in protecting those rights.
The conundrum arose when Gresham filed a federal lawsuit in Little Rock on May 4 challenging the constitutionality of parts of Arkansas Code Annotated 5-63-204, which makes automated telephone solicitation, political or otherwise, a Class B misdemeanor punishable by civil penalties.
Gresham's attorney, Jason Torchinsky of Warrenton, Va., argued Thursday that the state law "prohibits political speech that is at the core of the First Amendment."
In the lawsuit he filed on behalf of Gresham, of Columbia, Va., and his company, Conquest Communications Inc., Torchinsky noted that Arkansas' previous attorney general, Dustin McDaniel, issued an advisory opinion in 2011 holding that the provision of the law prohibiting such calls in connection with a political campaign was constitutionally "highly suspect."
The part of the law concerning commercial robocalls is not being challenged.
Torchinsky said that in applying the law to political calls, "Arkansas has targeted political speech ... in violation of the First and 14th amendments." He noted that federal appellate courts outside of the 8th U.S. Circuit Court of Appeals, which governs Arkansas and six other states, have struck down other states' robocall bans based on the same reasons Gresham opposes the Arkansas law.
Torchinsky also told the judge that he must use the "strict scrutiny" standard of review, which requires the state to demonstrate its "compelling interest" in keeping the law in place, and to show that the law is narrowly tailored to that interest. There is no compelling state interest that can override the First Amendment, he said.
Assistant Attorney General KaTina Hodge, who represents the sole defendant in the case, Attorney General Leslie Rutledge, told Holmes on Thursday that if he strikes down the state law, "that would allow them to force more than a million robocalls into the homes of Arkansans every day. ... The Supreme Court has said there is absolutely no right to force a foot in the door and demand to be heard."
The lawsuit isn't challenging the Federal Communication Commission's' regulations on robocalls to mobile telephones. It is focused solely on calls placed to landlines.
Hodge cited two compelling interests the state has for enforcing the law: the protection of state residents' privacy from unwanted intrusions into their homes, and the protection of household telephone lines from "seizure" by robots.
"The TSA does not prevent the plaintiffs from engaging in political speech in Arkansas," Hodge said, referring to the state's Telephone Solicitation by Automation law. She said there are numerous other ways to spread political messages within the state, and that Gresham and Conquest still can use automated dialing as long as the message itself isn't automated.
The law places restrictions on the use of robocalls, which are calls or messages that involve the use of an automated system for the selection and dialing of telephone numbers and the playing of recorded messages. It prohibits such calls "for the purpose ... of soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system or the selection of dialing of telephone numbers and the playing of recorded messages when a message is completed to the called number," according to her written brief opposing Gresham's request for an injunction to halt enforcement of the law.
Gresham wants to place automated calls that would play prerecorded messages to people who answer the phone, as well as to an answering machine, voice mail or any other recording device recognized by the automated system. If a person answered, a "live operator" would speak with the person; otherwise, the prerecorded message would play, according to the lawsuit.
Hodge noted that Conquest touts its "expertise and technology" to craft successful mixed-media campaigns, including the fact that it has a 1,200-line automated message-delivery system and an 80-seat live operator call center, as well as another 5,000 telephone lines at its affiliate offices.
"Conquest is capable (per its own advertisements) of generating hundreds of thousands of automated messages to 'households in a matter of hours and millions of automated messages every day," she said in her written brief. "In short, Conquest can send thousands of automated messages in a matter of minutes, hundreds of thousands in a matter of hours, and millions every day to unsuspecting households."
Holmes said Hodge's argument "begs the question -- does everyone regard these calls as unwanted?" If so, he said, political candidates wouldn't want to pay someone to place them. He said that tells him that "at least the candidates must think they have some positive impact."
If the calls aren't unwelcome by all, Holmes said, the remedy would be for the state to adopt its own Do-Not-Call registry and for homeowners who don't want to receive the calls to place their names on the list.
Hodge responded that it's also possible for people who want to receive such messages to specifically request them. She said the Arkansas statute and federal regulations concerning robocalls wouldn't even exist "if there wasn't proof that robocalls are problematic."
Holmes agreed that "they certainly can be annoying," but questioned "whether that rises to a compelling state interest."
Hodge argued that unwanted robocalls can "trap" people in their own homes if they have to wait until the entire message is finished in order to obtain a telephone number that is required to be given at the end of the message to allow a person to call in to be removed from the call list.
She said there also is a safety interest in preventing robocalls. When recipients of unwanted automated calls simply hang up, some robots register the fact that the call hasn't gone through and will continue to call that phone number several times a day, she explained. If a robocall's repeated calls use up all the available message space, she said, it could prevent residents from receiving important calls, like from a child who missed the bus and needs a ride home from school.
"Is there any evidence that has ever happened?" Holmes asked.
Hodge replied that statistics aren't necessary; that it's a matter of common sense.
Holmes told attorneys that he would leave the record open in the case for 28 days -- 14 days during which they can submit exhibits to back up their arguments, and another 14 days to respond to each other's evidence. He said he would decide the case as quickly as possible, because he is aware Conquest wants to make political calls to Arkansans as soon as possible.
"There are a lot of facts being argued, with hardly anything in the record," Holmes said.
Metro on 06/24/2016