Robert Cahaly v. Paul LaRosa, III

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 6:13-cv-00775-JMC. [999635478]. [14-1651, 14-1680]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1651

ROBERT C. CAHALY,
Plaintiff – Appellee,
v.
PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,
Defendants – Appellants.

No. 14-1680

ROBERT C. CAHALY,
Plaintiff – Appellant,
v.
PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,
Defendants – Appellees.

Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:13-cv-00775-JMC)

Argued:

March 25, 2015

Decided:

August 6, 2015

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Before WYNN, DIAZ, and THACKER, Circuit Judges.

Affirmed
in
part,
vacated
in
part,
and
remanded
with
instructions by published opinion.
Judge Diaz wrote the
opinion, in which Judge Wynn and Judge Thacker joined.

ARGUED: Kenneth Paul Woodington, DAVIDSON & LINDEMANN, P.A.,
Columbia,
South
Carolina,
for
Appellants/Cross-Appellees.
Samuel Darryl Harms, III, HARMS LAW FIRM, PA, Greenville, South
Carolina, for Appellee/Cross-Appellant.
ON BRIEF: Robert D.
Cook, Solicitor General, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina; William H. Davidson, II, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellants/CrossAppellees.

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DIAZ, Circuit Judge:
Robert

C.

consultant,
Carolina’s

Cahaly,

was

a

self-described

arrested

anti-robocall

for

Republican

alleged

statute.

violations

After

the

political
of

charges

South
were

dismissed, Cahaly filed suit, challenging the statute on three
First Amendment grounds: as an unlawful regulation of speech, as
impermissibly
vague.

Cahaly

officials

compelling
also

involved

speech,

sought

in

his

and

damages
arrest

as

from
(and

unconstitutionally
the

the

law

enforcement

agency

employing

them), advancing claims under 42 U.S.C. § 1983 and state law for
false imprisonment and malicious prosecution.
Under the content-neutrality framework set forth in Reed v.
Town of Gilbert, 135 S. Ct. 2218 (2015), we find that the antirobocall statute is a content-based regulation that does not
survive

strict

scrutiny. 1

We

also

hold

that

Cahaly

lacks

standing to bring compelled-speech and vagueness challenges, and
that his other claims fail due to the presence of probable cause
to arrest him.

As a result, we affirm the district court’s

judgment except for the compelled-speech claim, which we vacate
and remand with instructions to dismiss it.

1

We received supplemental briefs from the parties on the
import of Reed to the issues on appeal.

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I.
A.
In

1991,

the

statute

regulating

recorded

messages,

South

Carolina

automated

General

telephone

calls

“robocalls.” 2

or

Assembly

This

enacted

that

a

deliver

statute

places

different restrictions on robocalls depending on whether they
are (1) unsolicited and (2) made for consumer, political, or
other

purposes.

By

definition,

it

prohibits

only

those

robocalls that are “for the purpose of making an unsolicited
consumer

telephone

including,
campaigns.”

but

not

call”

or

limited

are

to,

“of

calls

a

political

relating

to

nature

political

S.C. Code Ann. § 16-17-446(A).

All qualifying robocalls are banned with three exceptions,
based on the express or implied consent of the called party:
(1) in response to an express request of the person
called; (2) when primarily connected with an existing
debt or contract, payment or performance of which has
not been completed at the time of the call; (3) in
response to a person with whom the telephone solicitor
has an existing business relationship or has had a
previous business relationship.
Id.

§ 16-17-446(B).

robocall

must

If

“disconnect

an

exception

immediately

applies,
when

the

the

permitted

called

party

hangs up”; must be made between 8:00 AM and 7:00 PM; and “may
2

The statute refers to robocalls as “Adad calls,” which
stands for “automatically dialed announcing device.”
S.C. Code
Ann. § 16-17-446 (2014).

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not

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ring

at

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hospitals,

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police

stations,

fire

departments,

nursing homes, hotels, or vacation rental units.”
446(C)(2)-(4).

Some

permitted

robocalls

must

Id. § 16-17also

disclose

certain information to the called party: “(1) the identity of
the seller; (2) that the purpose of the call is to sell goods or
services; [and] (3) the nature of the goods or services.”

Id.

§§ 16-17-445(B)(1)-(3), -446(C)(1).
Other

statutory

solicitors

making

provisions
unsolicited

contain
consumer

rules

for

telephone

live
calls.

Solicitors must place their calls from 8:00 AM and 9:00 PM, make
certain

disclosures,

and

maintain

a

do-not-call

list.

Id.

§§ 16-17-445(B)-(E).
A
offense.

violation

of

the

statute

constitutes

a

misdemeanor

Id. § 16-17-446(D) (cross-referencing § 16-17-445(F)).

A first or second conviction carries a maximum punishment of a
$200 fine or 30 days in prison while a third or later conviction
carries a fine of $200 to $500 or the same maximum 30 days’
imprisonment.

Id.
B.

On September 23, 2010, Cahaly allegedly placed robocalls in
six South Carolina house legislative districts.

With the name

changed to reflect the Democratic candidate in each district,
the calls’ prerecorded message said:
Please hold for a one-question survey.
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As you may have heard, Speaker of
Pelosi is coming to South Carolina.

the

House

Nancy

Do you think incumbent Democrat Anne Peterson Hutto
should invite her fellow Democrat Nancy Pelosi to come
campaign for her?
Press 1 if you think incumbent Democrat Anne Peterson
Hutto should invite her fellow Democrat Nancy Pelosi
to come and campaign for her.
Press 2 if you think incumbent Democrat Anne Peterson
Hutto should not invite her fellow Democrat Nancy
Pelosi to come and campaign for her.
J.A. 219-20.
About one week before the calls were placed, an attorney
with

the

South

Carolina

Office

of

the

Attorney

General

told

Cahaly that the anti-robocall statute did not cover “automated
telephone survey polls of a political nature.”

J.A. 74.

The

attorney encouraged him to ask a member of the state House of
Representatives to seek a written opinion to that effect.
representative
issued

a

made

letter,

that

the

day

request,

and

before

Cahaly

the

Attorney

made

the

General

robocalls,

stating:
In the opinion of this office, organizations, such as
Survey USA, may routinely conduct automated survey
telephone calls for political purposes in this State
that require the recipient’s responses via a phone
key.
The purpose of the ADAD law is to prohibit the
unwarranted invasion by automated dialing devices in
order to promote advocacy of a “product” including a
particular candidate.
Thus, as long as these polling
calls, even if they are of a political nature, do not
advocate a particular political candidate but simply

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obtain a “snapshot” opinion of a voter, they may be
made.
J.A. 83.
The day after Cahaly placed the robocalls, an incumbent
seeking reelection in one of the targeted districts wrote to the
South Carolina Law Enforcement Division (“SLED”) reporting that
her constituents had received telephone calls that violated the
anti-robocall statute.

Over the next three weeks, Democratic

candidates in the other five districts also reported to SLED
that their constituents had received the same calls using their
names.
On November 1, 2010, a state magistrate judge issued six
warrants--one for each targeted district--for Cahaly’s arrest.
The election was held November 2.

That same day, SLED issued a

press release announcing the warrants.
turned

himself

in,

recognizance.

The

was

booked,

warrants

and

were

was

On November 3, Cahaly
released

dismissed

on

his

eighteen

own

months

later.
C.
Cahaly filed a complaint in state court against SLED; Paul
C. LaRosa, III, a special agent with SLED who completed the
arrest warrant applications; and Reginald I. Lloyd, the director
of

SLED

at

the

“Defendants”).

time
Cahaly

of

Cahaly’s

sought

a

7

arrest

(collectively,

declaration

that

the

the

anti-

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statute

was

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unconstitutional

and

prohibiting the Defendants from enforcing it.

an

injunction

He also alleged a

damages claim under 42 U.S.C. § 1983 and state law claims for
false imprisonment and malicious prosecution.
The Defendants removed the case to federal court.

Cahaly

moved for partial summary judgment on his claim for declaratory
and

injunctive

relief.

The

Defendants

moved

for

summary

judgment on all claims.
The district court granted Cahaly’s motion, declared the
anti-robocall statute unconstitutional, and issued a permanent
injunction barring enforcement of the statute.

The district

court concluded that the statute was a content-based restriction
on speech and applied strict scrutiny.
court

found

the

underinclusiveness

statute
and

Under that rubric, the

unconstitutional

its

singling

out

due

of

to

“its

commercial

and

political speech” when the asserted government interest was to
eliminate nearly all robocalls to protect residential privacy.
Cahaly v. LaRosa, 25 F. Supp. 3d 817, 827 (D.S.C. 2014).
court

also

robocalls

determined
to

that

disclose

unconstitutional

as

the

statutory

certain

compelled

provision

identifying

speech,

but

requiring

information

that

The

Cahaly

was

lacked

standing to bring his vagueness challenge.
The

district

court

awarded

Defendants on Cahaly’s other claims.
8

summary

judgment

to

the

The court held that LaRosa

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were

entitled

to

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qualified

immunity

on

the

§ 1983

claim because the right at issue was not clearly established.
The court also held that the existence of probable cause to
arrest

Cahaly

defeated

his

false

imprisonment

and

malicious

court’s

judgment

prosecution claims.
The

Defendants

appeal

granting

declaratory

and

the

district

injunctive

relief.

Cahaly

cross-

appeals the district court’s judgment on his damages claims.
review

de

novo

the

district

court’s

order

granting

judgment and its ruling that a party lacks standing.

We

summary
Brown v.

Town of Cary, 706 F.3d 294, 300 (4th Cir. 2013).

II.
We begin with Cahaly’s First Amendment claim.

First, we

consider whether the anti-robocall statute is a content-neutral
restriction

on

speech

subject

to

intermediate

scrutiny

or

a

content-based restriction that must withstand strict scrutiny.
We

then

provision

turn

to

whether

constitutes

the

compelled

Cahaly’s vagueness challenge.
the

statute

is

statute’s

content

speech.

mandatory
Lastly,

disclosure
we

reach

As explained below, we hold that

based

and

does

not

survive

strict

scrutiny, and that Cahaly lacks standing to bring his compelledspeech and vagueness challenges.

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A.
The Supreme Court recently clarified the content-neutrality
inquiry in the First Amendment context.

In Reed, the Court

explained that “the crucial first step in the content-neutrality
analysis” is to “determin[e] whether the law is content neutral
on its face.”
facially

135 S. Ct. at 2228.

content-neutral

law

will

At the second step, a
still

be

categorized

as

content based if it “cannot be ‘“justified without reference to
the content of the regulated speech,”’ or . . . adopted by the
government

‘because

speech] conveys.’”

of

disagreement

with

the

message

[the

Id. at 2227 (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989)).
This formulation conflicts with, and therefore abrogates,
our previous descriptions of content neutrality in cases such as
Brown v. Town of Cary.
is

‘justified

speech,’
[that]

without

See 706 F.3d at 303 (“[I]f a regulation
reference

[citation

omitted]

regulation

content

differentiates

between

‘we

to

the

have

neutral

types

of

content

not

hesitated

even

speech.’”)

of

if

it

(quoting

regulated
to

deem

facially
Wag

More

Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 366 (4th Cir.
2012) (last alteration in original)).
that,

when

government’s

conducting
purpose

the
is

Our earlier cases held

content-neutrality
the

controlling

inquiry,

“[t]he

consideration.”

Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th
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Cir. 2013) (quoting Ward, 491 U.S. at 791).

But Reed has made

clear that, at the first step, the government’s justification or
purpose in enacting the law is irrelevant.

135 S. Ct. at 2228-

29.
Applying Reed’s first step, we find that South Carolina’s
anti-robocall statute is content based because it makes content
distinctions on its face.
regulation

of

speech

is

Reed instructs that “[g]overnment
content

based

if

a

law

applies

to

particular speech because of the topic discussed or the idea or
message

expressed.”

135

S.

Ct.

at

2227.

Here,

the

anti-

robocall statute applies to calls with a consumer or political
message but does not reach calls made for any other purpose.
Because of these facial content distinctions, we do not reach
the second step to consider the government’s regulatory purpose.
See id. at 2228 (“[A]n innocuous justification cannot transform
a facially content-based law into one that is content neutral.”)
As a content-based regulation of speech, the anti-robocall
statute is subject to strict scrutiny.
standard,
furthers

the
a

government

compelling

achieve that interest.”

must

interest

Id. at 2231.

prove
and

is

“that

the

narrowly

Under this
restriction
tailored

to

Id. (quoting Ariz. Free Enter. Club’s

Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)).

“If

a less restrictive alternative would serve the [g]overnment’s
purpose, the legislature must use that alternative.”
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States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
Moreover,

the

restriction

“unnecessarily

cannot

be

circumscrib[ing]

overinclusive

protected

by

expression,”

Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002)
(quoting

Brown

underinclusive

v.

Hartlage,

by

456

“leav[ing]

U.S.

45,

54

appreciable

(1982)),

damage

to

or
[the

government’s] interest unprohibited,” Reed, 135 S. Ct. at 2232
(quoting White, 536 U.S. at 780).
The

asserted

government

interest

here

is

to

protect

residential privacy and tranquility from unwanted and intrusive
robocalls.
the

Assuming that interest is compelling, we hold that

government

statute

is

has

failed

narrowly

restrictive

to

prove

tailored

alternatives

to

that

serve

include

the

it.

anti-robocall
Plausible

time-of-day

less

limitations,

mandatory disclosure of the caller’s identity, or do-not-call
lists.

See Maryland v. Universal Elections, Inc., 729 F.3d 370,

376 (4th Cir. 2013) (evaluating the federal Telephone Consumer
Protection Act’s identity disclosure requirement); Nat’l Fed’n
of the Blind v. F.T.C., 420 F.3d 331, 333-34 (4th Cir. 2005)
(examining a federal regulation that “requires callers to make
certain

disclosures,

refrain

from

making

late-night,

early-

morning, and ‘abandoned calls’ (calls followed by silence), and
comply

with

Minnesota,

59

a . . .
F.3d

‘do-not-call

1541,

1551
12

(8th

list’”);
Cir.

Van

1995)

Bergen

v.

(considering

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Minnesota’s ban on robocalls from 9 PM to 9 AM).

The government

has offered no evidence showing that these alternatives would
not be effective in achieving its interest.
In addition, the record contains evidence that the antirobocall statute is overinclusive.

The Defendants themselves

cite to 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.”
at 16 (1991).
At

H.R. Rep. 102-317,

Yet the statute also targets political calls.

the

same

time,

the

statute

suffers

from

underinclusiveness because it restricts two types of robocalls-political and consumer--but permits “unlimited proliferation” of
all other types.

Reed, 135 S. Ct. at 2231; see id. (“The Town

cannot claim that placing strict limits on temporary directional
signs is necessary to beautify the Town while at the same time
allowing unlimited numbers of other types of signs that create
the same problem.”).
Because

the

statute

does

not

pass

muster

under

strict

scrutiny, we affirm the district court’s judgment declaring it
unconstitutional.
B.
Turning
robocalls

are

to

Cahaly’s

permitted

compelled-speech

because
13

they

fall

challenge,

within

one

of

if
the

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exceptions

listed

in

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Section

16-17-446(B),

then

the

statute requires those calls to disclose “(1) the identity of
the seller; (2) that the purpose of the call is to sell goods or
services; [and] (3) the nature of the goods or services.”
Code

Ann.

§ 16-17-446(C)(1)

445(B)(1)-(3)).
disclosures

(cross-referencing

S.C.

§ 16-17-

The district court ruled that these mandatory

unconstitutionally

compel

speech.

The

Defendants

contend this ruling is in error due to the absence of a case or
controversy, a jurisdictional prerequisite under Article III of
the U.S. Constitution.
One

requirement

We agree.
of

Article

III

standing

plaintiff suffer an “injury in fact.”
Driehaus,

134

S.

Ct.

2334,

is

that

the

2341

Susan B. Anthony List v.
(2014)

(quoting

Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

Lujan

v.

While “actual

arrest or prosecution” for violating a statute establishes an
injury in fact, Steffel v. Thompson, 415 U.S. 452, 459 (1974),
so

too

may

a

“credible

threat

of

prosecution

thereunder.”

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979).
As
violating
despite

the

Defendants

Section
the

note,

Cahaly

16-17-446(C)(1),

affidavits

submitted

the
to

was

not

charged

disclosure
the

with

provision,

magistrate

judge

alleging that Cahaly’s robocalls “failed to promptly disclose in
a clear and conspicuous manner to the receiver of the call the
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identity of the originating party, endorsement of a candidate
and or [sic] the nature of the call.”
was

charged

which

ban

solely

with

political

violating

robocalls

J.A. 237-42.
Sections

Rather, he

16-17-446(A)-(B),

outright.

In

addition,

the

affidavits do not allege any facts about Cahaly’s relationship
to

the

called

parties,

but

the

called

parties’

express

or

implied consent to being called is a necessary condition for the
disclosure

provision

446(B)-(C).
faces

to

apply.

See

S.C.

Code

Ann.

§ 16-17-

Thus, federal jurisdiction hinges on whether Cahaly

“sufficiently

imminent”

future

arrest

or

prosecution.

Driehaus, 134 S. Ct. at 2342.
The

record

contains

no

evidence

prerequisite to federal jurisdiction.

to

support

this

In a declaration, Cahaly

explains his “desire to conduct telephone survey polls in the
future in the State of South Carolina of a political nature and
telephone calls related to political campaigns.”

J.A. 73.

But

never does he allege his intention to make robocalls permitted
by

the

statute,

and

therefore

subject

to

the

disclosure

provision, by falling within one of the Section 16-17-446(B)
exceptions.
As

a

result,

Cahaly

lacks

standing

disclosure provision as compelled speech.

to

challenge

the

We therefore vacate

the district court’s judgment on this claim, and remand with
instructions to dismiss it.
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C.
Regarding Cahaly’s vagueness challenge, the district court
ruled that he lacked standing to press it.

We agree.

“One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.”
U.S.

733,

756

(1974).

Cahaly

argues

Parker v. Levy, 417

that

the

anti-robocall

statute does not clearly apply to him because he made survey
calls.

But he does not dispute that his robocalls were also “of

a political nature,” a category to which the statute expressly
applies.

S.C. Code Ann. § 16-17-446(A).

Because the statute

squarely covers Cahaly’s calls, we affirm the district court’s
judgment dismissing his vagueness challenge.

III.
We turn to Cahaly’s cross-appeal of his § 1983 and state
law claims.

Because we find that probable cause supported his

arrest for violating the anti-robocall statute, we affirm the
district court’s grant of summary judgment to the Defendants.
A.
Cahaly alleges that LaRosa and Lloyd violated § 1983 by
arresting and prosecuting him in retaliation for his exercise of
free speech.

He first argues that a genuine issue of material

fact exists as to whether LaRosa had probable cause to arrest
him.

We disagree.
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A law enforcement officer who obtains an arrest warrant
loses the protection of qualified immunity “[o]nly where the
warrant application is so lacking in indicia of probable cause
as to render official belief in its existence unreasonable.”
Torchinsky

v.

Siwinski,

942

F.2d

257,

261

(4th

Cir.

1991)

(alteration in original) (quoting Malley v. Briggs, 475 U.S.
335, 344-45 (1986)).
means
that

facts
are

and

“‘[P]robable cause’ to justify an arrest

circumstances

sufficient

to

within

warrant

a

the

officer’s

prudent

person,

knowledge
or

one

of

reasonable caution, in believing, in the circumstances shown,
that the suspect has committed . . . an offense.”
DeFillippo, 443 U.S. 31, 37 (1979).
Cahaly

and

the

district

court

Michigan v.

Although we agree with
that

the

statute

is

unconstitutional, at the time of Cahaly’s arrest, “there was no
controlling

precedent

constitutional
anticipate

[and

that

unconstitutional.”

a

a]

that

[the

prudent

court

officer

would

Id. at 37-38.

statute]

later

[is

was

or

not]

hold

was

required

the

not
to

[statute]

Thus, our earlier holding has

no bearing on whether LaRosa had probable cause when he arrested
Cahaly.
Before making the arrest, LaRosa had statements from six
witnesses describing the robocalls and a recording of one of the
calls.

Some of the witnesses also provided the telephone number

of the caller, and a later investigation connected that number
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to Cahaly as the president of the entity that paid for it.
Moreover, one witness reported that the call “was not a real
survey because pressing a button was not an option.”

J.A. 128.

LaRosa was also aware of the Attorney General’s opinion
letter

stating

political
J.A. 83.

that

purposes”

“automated
fell

survey

outside

telephone

calls

the

anti-robocall

for

statute.

However, we think that a reasonable officer could have

determined
contemplated

that
by

Cahaly’s
the

robocalls

Attorney

differed

General

from

based

the

on

those
overtly

political nature of the calls and one witness’s view that the
survey aspect was a sham.

Even if that determination was wrong

as a matter of law, officers may have probable cause to arrest
based on “reasonable mistakes of law.”

Heien v. North Carolina,

135 S. Ct. 530, 536-37 (2014).
Cahaly

contends

that

the

arrest

warrants

are

facially

invalid because they include disclosure requirements that appear
nowhere

in

the

statute.

The

affidavits

used

to

obtain

the

warrants allege that Cahaly “failed to promptly disclose in a
clear and conspicuous manner to the receiver of the call the
identity of the originating party, endorsement of a candidate
and or [sic] the nature of the call.”

J.A. 237-42.

But Section

16-17-446(C) only requires some robocalls to disclose “(1) the
identity of the seller; (2) that the purpose of the call is to

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sell goods or services; [and] (3) the nature of the goods or
service.”

S.C. Code Ann. § 16-17-445(B)(1)-(3).

An arrest warrant is invalid only if the officer preparing
the affidavit included a false statement with reckless disregard
for

its

truth

affidavit’s

and,

after

remaining

probable cause.”

that

content

statement
is

is

insufficient

redacted,
to

“the

establish

Franks v. Delaware, 438 U.S. 154, 156 (1978).

Even assuming that the disclosure requirements in the affidavits
were

false

disregard

statements

for

their

and

truth

that
by

LaRosa

acted

including

them,

probable cause based on the remaining content.

with
we

reckless

still

find

The affidavits

allege that Cahaly made robocalls of a political nature, and
nothing more is required to violate the anti-robocall statute.
Consequently,

we

affirm

the

district

court’s

judgment

that

LaRosa and Lloyd are entitled to qualified immunity. 3

3

Cahaly also argues that the arrest warrant affidavits fail
to include an essential element of the offense by not alleging
that his robocalls included a prize promotion.
Section 16-17446(A) defines “‘Adad’ [to] mean[] an automatically dialed
announcing device which delivers a recorded message without
assistance by a live operator for the purpose of making an
unsolicited consumer telephone call as defined in Section 16-17445(A)(3).” The cross-reference takes readers to the definition
for a “prize promotion” at Section 16-17-445(A)(3) while the
definition for “unsolicited consumer telephone call” appears at
Section 16-17-445(A)(4).
According to Cahaly, this crossreference
should
be
interpreted
literally,
such
that
“unsolicited consumer telephone call” means “prize promotion.”
(Continued)
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B.
From
arrest

our

Cahaly,

claims.

conclusion
we

Under

imprisonment

that

quickly
South

requires

LaRosa

dispense

Carolina

the

had

with

law,

plaintiff

to

probable

cause

Cahaly’s
a

claim

state
for

demonstrate,

in

to
law

false
part,

that “the restraint was unlawful.”

Law v. S.C. Dep’t of Corr.,

629 S.E.2d 642, 651 (S.C. 2006).

“The fundamental issue in

determining the lawfulness of an arrest is whether there was
probable cause to make the arrest.”

Id.

malicious

Carolina

prosecution,

a

South

To state a claim for
plaintiff

establish, among other things, “lack of probable cause.”
648.

Because

Cahaly

has

not

satisfied

this

element

must
Id. at
of

the

claims, we affirm the district court’s judgment in favor of the
Defendants.

We
find
that
construction
nonsensical
and
obviously
contrary to legislative intent.
The statute provides a
definition for “unsolicited consumer telephone call” in the very
next subsection.
And as the Defendants point out, the
legislative history shows that the cross-reference to prize
promotion is a typographical error. As originally enacted, the
definition of “unsolicited consumer telephone call” appeared at
Section 16-17-445(A)(3).
H.R. 3453, 107th Gen. Assemb. (S.C.
1988).
The legislature later added a definition for “prize
promotion” and bumped the definition for “unsolicited consumer
telephone call” to the next subsection.
In so doing, the
legislature simply neglected to update the cross-reference in
Section 16-17-446(A).
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IV.
For the foregoing reasons, we affirm in part and vacate in
part the district court’s judgment, and remand the case with
instructions to dismiss the compelled-speech claim.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS

21