Patriotic Veterans, Incorporat v. State of Indiana, et al
Filing
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6808768-1] [6808768] [16-2059]
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Case: 16-2059
Document: 24
Filed: 01/03/2017
Pages: 6
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-‐‑2059
PATRIOTIC VETERANS, INC.,
Plaintiff-‐‑Appellant,
v.
GREG ZOELLER, Attorney General of Indiana,
Defendant-‐‑Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-‐‑cv-‐‑723-‐‑WTL-‐‑MPB — William T. Lawrence, Judge.
____________________
ARGUED NOVEMBER 1, 2016 — DECIDED JANUARY 3, 2017
____________________
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Plaintiff, a veterans’ group,
contends that an anti-‐‑robocall statute, Ind. Code §24-‐‑5-‐‑14-‐‑5,
violates the First Amendment to the Constitution, applied to
the states by the Fourteenth Amendment. The Telephone
Consumer Protection Act, 47 U.S.C. §227, which contains a
similar limit, has been sustained by two circuits. See Gomez
v. Campbell-‐‑Ewald Co., 768 F.3d 871 (9th Cir. 2014), affirmed
on other grounds, 136 S. Ct. 663 (2016); Van Bergen v. Minne-‐‑
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No. 16-‐‑2059
sota, 59 F.3d 1541, 1549–56 (8th Cir. 1995); Moser v. FCC, 46
F.3d 970 (9th Cir. 1995). The same circuits have approved
state laws as well. See Van Bergen (sustaining a Minnesota
law in addition to §227); Bland v. Fessler, 88 F.3d 729 (9th Cir.
1996) (California law). But relying on Cahaly v. LaRosa, 796
F.3d 399 (4th Cir. 2015), which found South Carolina’s anti-‐‑
robocall law to be unconstitutional, plaintiff maintains that
Reed v. Gilbert, 135 S. Ct. 2218 (2015), made these decisions
obsolete and dooms both state and federal anti-‐‑robocall stat-‐‑
utes as instances of content discrimination. We disagree with
that contention and conclude that Indiana’s law is valid.
Indiana forbids recorded phone messages placed by au-‐‑
tomated dialing machines unless “(1) the subscriber has
knowingly or voluntarily requested, consented to, permit-‐‑
ted, or authorized receipt of the message; or (2) the message
is immediately preceded by a live operator who obtains the
subscriber’s consent before the message is delivered.” Ind.
Code §24-‐‑5-‐‑14-‐‑5(b). Plaintiff maintains that the option given
by subsection (b)(2) is prohibitively expensive, so that as a
practical matter the statute forbids robocalls in the absence
of advance consent by the recipient. We shall assume that
this is so. Yet the requirement of consent is not content dis-‐‑
crimination, so plaintiff focuses attention on three statutory
exceptions:
This section does not apply to any of the following messages:
(1) Messages from school districts to students, parents, or
employees.
(2) Messages to subscribers with whom the caller has a cur-‐‑
rent business or personal relationship.
(3) Messages advising employees of work schedules.
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Ind. Code §24-‐‑5-‐‑14-‐‑5(a). The district court concluded that
these exceptions do not constitute content discrimination
and held that the law is constitutional. 177 F. Supp. 3d 1120
(S.D. Ind. 2016). The district court had earlier deemed the
Indiana statute preempted, but we reversed, 736 F.3d 1041
(7th Cir. 2013), leaving only the constitutional challenge.
Plaintiff tells us that the statute as a whole disfavors po-‐‑
litical speech and therefore entails content discrimination, as
Reed understood that phrase. We don’t get it. Nothing in the
statute, including the three exceptions, disfavors political
speech. The statute as a whole disfavors cold calls (that is,
calls to strangers), but if a recipient has authorized robocalls
then the nature of the message is irrelevant. The three excep-‐‑
tions in §24-‐‑5-‐‑14-‐‑5(a) likewise depend on the relation be-‐‑
tween the caller and the recipient, not on what the caller
proposes to say. Our first opinion described these exceptions
as a form of implied consent, 736 F.3d at 1047, adding to the
express consent exception in §24-‐‑5-‐‑14-‐‑5(b)(1). The exceptions
collectively concern who may be called, not what may be
said, and therefore do not establish content discrimination.
That’s not quite true of §24-‐‑5-‐‑14-‐‑5(a)(3), which deals with
messages “advising employees of work schedules.” If plain-‐‑
tiff proposed to make automated calls to its own employees,
it could contend that the restriction—the calls must concern
work schedules—blocked it from including political speech.
But, when asked at argument, counsel for plaintiff stated
that the organization does not feel inhibited in communi-‐‑
cating with its own employees—who, after all, may have
given express consent under §24-‐‑5-‐‑14-‐‑5(b)(1). So if we were
to hold that employers may say anything they like in auto-‐‑
mated calls to employees, this would do plaintiff no good.
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Nor would an injunction striking subsection (a)(3) from the
statute. Such an injunction would make plaintiff worse off
by making it harder to get in touch with its staff, and plain-‐‑
tiff understandably has not asked for that relief. What it
wants is an order preventing Indiana from enforcing §24-‐‑5-‐‑
14-‐‑5(b). Potential problems with how subsection (a)(3) af-‐‑
fects other persons do not give plaintiff standing to complain
about subsection (b), its target in this suit.
Plaintiff’s other line of argument is that the statute is ex-‐‑
cessive in relation to its goal of protecting phone subscribers’
peace and quiet, and that the First Amendment thus requires
Indiana to make an exception for political speech. That ex-‐‑
ception, if created, would be real content discrimination, and
Reed then would prohibit the state from forbidding robocall
advertising and other non-‐‑political speech. That’s the con-‐‑
clusion of Cahaly. South Carolina’s anti-‐‑robocall statute “ap-‐‑
plies to calls with a consumer or political message but does
not reach calls made for any other purpose.” Cahaly, 796 F.3d
at 405. The Fourth Circuit concluded that drawing lines on
the basis of the message presented, rather than (as Indiana’s
law does) consent by the person to be called, is content dis-‐‑
crimination prohibited by the First Amendment. Plaintiff
wants us to take a content-‐‑neutral law and make it invalid
by creating message-‐‑based distinctions. That’s out of the
question. Indiana’s law must stand or fall as written. Thus
the remaining question is not whether Indiana must allow
automated politicking by phone, but whether it is entitled to
make advance consent (express or implied) a condition of
any automated phone call, regardless of subject.
No one can deny the legitimacy of the state’s goal: Pre-‐‑
venting the phone (at home or in one’s pocket) from fre-‐‑
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quently ringing with unwanted calls. Every call uses some of
the phone owner’s time and mental energy, both of which
are precious. Most members of the public want to limit calls,
especially cell-‐‑phone calls, to family and acquaintances, and
to get their political information (not to mention their adver-‐‑
tisements) in other ways. Federal law severely limits unsolic-‐‑
ited calls to cell phones, 47 U.S.C. §227(b)(1)(A)(iii), and the
FTC maintains a do-‐‑not-‐‑call registry for landline phones, just
as the Postal Service maintains a no-‐‑junk-‐‑mail list. These de-‐‑
vices have been sustained against constitutional challenge.
See, e.g., Rowan v. Post Office, 397 U.S. 728 (1970) (junk-‐‑mail
list); Mainstream Marketing Services, Inc. v. FTC, 358 F.3d 1228
(10th Cir. 2004) (do-‐‑not-‐‑call registry). Limits on unsolicited
faxes have been sustained on similar reasoning. See, e.g.,
Missouri ex rel. Nixon v. American Blast Fax, Inc., 323 F.3d 649
(8th Cir. 2003).
But number porting has made it increasingly hard to dis-‐‑
tinguish cell numbers from landline numbers, and many
callers disregard (or are exempt from) the do-‐‑not-‐‑call regis-‐‑
try because it is expensive to check the FTC’s list against lists
of potential call recipients. That’s why the national govern-‐‑
ment and states such as Indiana have adopted limits on a
particular calling technology, the robocall, that many recipi-‐‑
ents find obnoxious because there’s no live person at the
other end of the line. The lack of a live person makes the call
frustrating for the recipient but cheap for the caller, which
multiplies the number of these aggravating calls in the ab-‐‑
sence of legal controls. Anyone proposing to queue up a ro-‐‑
bocall knows its own technology, even if it does not know
whether the potential recipient is a cell phone or landline
phone, or is on or off the do-‐‑not-‐‑call list.
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Everyone has plenty of ways to spread messages: TV,
newspapers and magazines (including ads), websites, social
media (Facebook, Twitter, and the like), calls from live per-‐‑
sons, and even recorded spiels if a live operator first secures
consent. Plaintiff can ask its donors and potential donors to
agree to receive robocalls. Preventing automated messages
to persons who don’t want their peace and quiet disturbed is
a valid time, place, and manner restriction. Other circuits’
decisions, which we have cited, spell out the reasoning;
repetition would be otiose. Because Indiana does not dis-‐‑
criminate by content—the statute determines who may be
called, not what message may be conveyed—these decisions
have not been called into question by Reed.
AFFIRMED
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