4th Circuit Tosses S.C. |’Anti-Robocall’ Law

     RICHMOND, Va. (CN) – A South Carolina law that broadly restricts the use of automated phone calls for political purposes is unconstitutional, the Fourth Circuit ruled.
     The law, which was enacted by South Carolina legislature in 1991, outlawed computerized cold calls “of a political nature including, but not limited to, calls relating to political campaigns,” and imposed a punishment of 30 days in jail and a $500 fine on violators.
     On Sept. 23, 2010, Robert Cahaly, a Republican political consultant, placed prerecorded political survey calls to constituents in six different South Carolina legislative districts.
     Prior to placing the calls, Cahaly claimed, he contacted the South Carolina Attorney General’s office, who advised him by letter that, “as long as these polling calls, even if they are of a political nature, do not advocate a particular political candidate but simply obtain a ‘snapshot’ opinion of a voter, they may be made.”
     But when Democratic candidates began flooding law enforcement with complaints about Cahaly’s survey, six warrants were issued for his arrest, one for each of the house legislative districts he targeted, the August 6 ruling says.
     Cahaly voluntarily surrendered to law enforcement, and was released on his own recognizance.
     All six warrants were dismissed a year and a half later, court documents say, though the ruling does not indicate why the charges were dropped.
     Cahaly sued the state on Oct. 31, 2012, claiming its “anti-robocall” law impermissibly stifled protected speech.
     “Under that rubric, the court found the statute unconstitutional due to ‘its underinclusiveness and its singling out of commercial and political speech’ when the asserted government interest was to eliminate nearly all robocalls to protect residential privacy,” U.S. Circuit Judge Albert Diaz wrote on behalf of the three-judge panel.
     “The defendants themselves cite a report from a U.S. House of Representatives committee that concluded, ‘Complaint statistics show that unwanted commercial calls are a far bigger problem than unsolicited calls from political or charitable organizations,'” the ruling said. “Yet the statute also targets political calls.”
     While South Carolina’s robocall laws exclusively restrict political and consumer-based automated calls, the appellate decision notes that they leave room for “unlimited proliferation” of any other type of call, and that less severe alternatives to the ban might include time-of-day limitations, identity disclosures and do-not-call lists.
     “However, we think that a reasonable officer could have determined that Cahaly’s robocalls differed from those contemplated by the Attorney General based on the overtly political nature of the calls and one witness’s view that the survey aspect was a sham,” Diaz wrote.
     Representatives of the parties did not respond to a request for comment.

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