Gresham et al v. Rutledge
OPINION AND ORDER: According to the United States Supreme Court, a state-imposed, content-based restriction on speech can be enforced only if it passes the strict scrutiny test, and it is a rare case that survives strict scrutiny. The statute at issu e here imposes a content-based restriction on speech; it is not one of the rare cases that survives strict scrutiny. The state has failed to prove that the statute at issue advances a compelling state interest and is narrowly tailored to serve that i nterest. A decree will be entered separately enjoining Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas, from enforcing Ark. Code Ann. § 5-63-204(a)(1) insofar as that provision applies to telephone calls made in connection with a political campaign. Signed by Judge J. Leon Holmes on 7/27/2016. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
VICTOR GRESHAM and CONQUEST
COMMUNICATIONS GROUP, LLC
No. 4:16CV00241 JLH
LESLIE RUTLEDGE, in her official capacity
as Attorney General of the State of Arkansas
OPINION AND ORDER
Victor Gresham and Conquest Communications Group, LLC, bring this action pursuant to
42 U.S.C. § 1983 against Leslie Rutledge in her official capacity as Attorney General of the State
of Arkansas, challenging Ark. Code Ann. § 5-63-204(a)(1) on First Amendment grounds: Count I
alleges that the statute is unconstitutional on its face and as applied because it is a content-based
restriction on speech that cannot withstand strict scrutiny, while Count II alleges that the statute is
unconstitutional on its face and as applied because it is an impermissible prior restraint on
constitutionally-protected speech. The plaintiffs moved for a preliminary injunction pursuant to
Federal Rule of Civil Procedure 65(a)(1), and the Court scheduled a hearing for June 23, 2016. The
parties then moved pursuant to Federal Rule of Civil Procedure 65(a)(2) to consolidate the
preliminary injunction hearing with the trial on the merits, and the Court granted the motion. At the
hearing, however, neither party presented evidence, only argument, albeit argument that included
factual assertions. The Court then left the record open so that evidence could be presented in
support of the factual assertions. Having reviewed the briefs, heard arguments, and examined the
evidence submitted, the Court holds that the statute at issue is a content-based regulation that does
not survive strict scrutiny.
Gresham is a political consultant involved with the management of Conquest. Conquest
engages in political communications, including communications through automated telephone calls,
on behalf of clients. Gresham previously has performed such services for political candidates in
Arkansas and plans to do so in the future. Gresham seeks to conduct automated telephone calls in
the state, including surveys, messages concerning voting, express advocacy calls, and a variety of
other calls made in connection with political campaigns. To engage in these activities, the plaintiffs
use an automated dialing system and pre-recorded messages. The plaintiffs allege that they have
been chilled and restrained from performing services for political clients in Arkansas because of the
following provision of the Arkansas Code:
It is unlawful for any person to use a telephone for the purpose of offering any goods
or services for sale, or for conveying information regarding any goods or services for
the purpose of soliciting the sale or purchase of the goods of services, or for
soliciting information, gathering data, or for any other purpose in connection with
a political campaign when the use involves an automated system for the selection and
dialing of telephone numbers and the playing of recorded messages when a message
is completed to the call number.1
Ark. Code Ann. § 5-63-204(a)(1). The Arkansas General Assembly enacted this statute in 1981.
A violation is a Class B misdemeanor. Ark. Code Ann. § 5-63-204(b). The Attorney General, a
prosecuting attorney, and any law enforcement officer, or any telephone company serving an area
from which automated telephone calls are made, may seek injunctive relief to enforce the statute,
with the prevailing party entitled to attorney’s fees and court costs. Ark. Code Ann. § 5-63-204(c).
The First Amendment states that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the Government for a redress
of grievances.” U.S. Const. amend. 1. Prior to the enactment of the Fourteenth Amendment, the
The portion of this statute relating to goods and services does not apply to the plaintiffs,
and they do not challenge it. The only portion of the statute at issue here is the portion relating to
First Amendment did not apply to the states. See Permoli v. City of New Orleans, 44 U.S. 589, 11
L. Ed. 739 (1845). More than half a century after enactment of the Fourteenth Amendment, the
Supreme Court held that “the concept of liberty under the due process clause of the Fourteenth
Amendment embraces the right of free speech.” Fromberg v. California, 283 U.S. 359, 368, 51 S.
Ct. 532, 535, 75 L. Ed. 1117 (1931). See also Cantwell v. State of Connecticut, 310 U.S. 296, 303,
60 S. Ct. 900, 903, 84 L. Ed 1213 (1940) (“[t]he fundamental concept of liberty embodied in [the
Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.”). As a result
of the incorporation of the First Amendment into the Fourteenth, making it applicable to the states,
the right to free speech has been held to apply in some way to schools,2 prisons,3 zoning ordinances,4
state regulation of lawyer advertising,5 state laws regarding defamation,6 obscenity laws,7 and to
other governmental entities and in other circumstances too numerous to recount. Whether or not the
First Amendment in its original context could function as an absolute prohibition (“Congress shall
make no law . . . abridging the freedom of speech”), when incorporated into the Fourteenth
Amendment and applied to the states, such an absolute prohibition is not feasible.8 A school, for
Tinker v. Des Moines Ind. Com. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 1731
Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989).
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671
Bates v. State Bar of Ariz., 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977).
New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
Smith v. California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959).
Smolla opines that “absolutism is fundamentally too simplistic a method of analysis to be
a viable method for handling modern First Amendment conflicts.” RODNEY A. SMOLLA, 1 SMOLLA
AND NIMMER ON FREEDOM OF SPEECH § 2.50 (3d ed. 1996). This comment suggests that absolutism
example, could not function without the ability to impose some restrictions on speech. Or, as a
different example, “[w]hile signs are a form of expression protected by the Free Speech Clause, they
pose distinctive problems that are subject to municipalities’ police power. Unlike oral speech, signs
take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose
other problems that legitimately call for regulation.” City of Ladue v. Gilleo, 512 U.S. 43, 48, 114
S. Ct. 2038, 2041, 129 L. Ed. 2d 36 (1994).
In the absence of a constitutional provision that enunciates principles by which courts can,
in these myriad circumstances, ascertain which governmental restrictions violate the right to free
speech and which do not, the courts have developed “tests” for distinguishing which governmental
restrictions on speech pass constitutional muster, with the Supreme Court, of course, having the
ultimate say.9 As the case law has developed, different restrictions on speech are scrutinized under
different standards, depending on the type of speech restricted, where that speech falls within “the
scale of First Amendment values,” the type of restriction, or the reasons for the restriction.10 See,
e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S. Ct. 1912, 1918, 56 L. Ed. 2d 444
(1978) (“we . . . have afforded commercial speech a limited measure of protection, commensurate
with its subordinate position in the scale of First Amendment values, while allowing modes of
regulation that might be impermissible in the realm of noncommercial expression.”). When a court
might not have been too simplistic for handling pre-modern First Amendment issues, but the treatise
does not explain what has changed.
Cf. Konigsberg v. State Bar of California, 366 U.S. 36, 64, 81 S. Ct. 997, 1014, 6 L. Ed.
2d 105 (1961), Black, J. dissenting (advocating “rejecting all such ‘tests’ and enforcing the First
Amendment according to its terms.”).
“[M]odern First Amendment jurisprudence contains a plethora of doctrinal formulas[.]”
RODNEY A. SMOLLA, 1 SMOLLA AND NIMMER ON FREEDOM OF SPEECH § 2.50 (3d ed. 1996).
says that a restriction on speech violates the First Amendment, it usually means that the restriction
fails one of these judicially created “tests.” According to David Strauss, “the text and original
understandings of the First Amendment are essentially irrelevant to the American system of freedom
of expression as it exists today.” DAVID A. STRAUSS, THE LIVING CONSTITUTION (Oxford U. Press:
2010) at 55.11
The statute at issue here is a restriction on political speech which, “is, and has always been,
at the core of the protection afforded by the First Amendment.” 281 Care Comm. v. Arneson, 766
F.3d 774, 787 (8th Cir. 2014). The parties agree that the statute is a content-based restriction on
speech, which means that it is subject to strict scrutiny. Reed v. Town of Gilbert, Ariz., 135 S. Ct.
2218, 2227 (2015)12; see also R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542, 120 L.
Ed. 2d 305 (1992) (“[c]ontent-based regulations are presumptively invalid.”). Determining that a
restriction on speech is subject to strict scrutiny is nearly always a death knell for the restriction: “it
is the rare case in which . . . a law survives strict scrutiny.” Burson v. Freeman, 504 U.S. 191, 211,
112 S. Ct. 1846, 1857, 119 L. Ed. 2d 5 (1992).13
Under strict scrutiny, the state bears the burden of proving that the statute’s restriction on
speech (1) advances a compelling state interest and (2) is narrowly tailored to serve that interest.
Strauss argues that the untethering of large segments of constitutional jurisprudence from
the text of the Constitution is a good thing; not everyone agrees. See ANTONIN SCALIA AND BRYAN
A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (Thomson/West: 2012) at 40310.
Thus, the statute at issue here differs from the statute upheld in Van Bergen v. State of
Minn., 59 F.3d 1541 (8th Cir. 1995), which was not a content-based restriction. Id. at 1550-51.
“Although strict scrutiny was at a time regarded as a certain death knell for a law,
described as ‘strict in theory but fatal in fact,’ in more modern constitutional law adjudication laws
do, from time to time, survive strict scrutiny.” RODNEY A. SMOLLA, 1 SMOLLA AND NIMMER ON
FREEDOM OF SPEECH § 2.50 (3d ed. 1996).
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665-66, 191 L. Ed. 2d 570 (2015). “In general,
strict scrutiny is best described as an ends-and-means test that asks whether the state’s purported
interest is important enough to justify the restriction it has placed on the speech in question in
pursuit of that interest.” Wersal v. Sexton, 674 F.3d 1010, 1020 (8th Cir. 2012).
The Attorney General identifies three interests that the statute advances, two of which are
privacy interests and one of which is a safety concern: (1) protection of automated phone call
recipients from unwanted, intrusive speech before it is introduced into the home; (2) protection of
automated phone call recipients from repeated, unwanted intrusions; and (3) preventing the seizure
of phone lines, which could interfere with emergency calls being placed or received.
While declaring unconstitutional a residential picketing ordinance, the Eighth Circuit held
that similar interests related to residential privacy are substantial but not compelling. Kirkeby v.
Furness, 92 F.3d 655, 659 (8th Cir. 1996) (“Although the interest asserted by Fargo (protecting
residential privacy and tranquility) is a ‘substantial’ one, Frisby, 487 U.S. at 488, 108 S. Ct. at 2504,
the Supreme Court has never held that it is a compelling interest, see Carey v. Brown, 447 U.S. 455,
465, 100 S. Ct. 2286, 2292-93 (1980) and we do not think that it is.”). Thus, according to Eighth
Circuit precedent, the privacy interests that the Attorney General says that the statute advances,
while “substantial,” are not “compelling.”
Even if those privacy interests were compelling, they would not save the statute because it
is not narrowly tailored with respect to them. Likewise, even if the purported interest in public
safety is compelling, the statute is not narrowly tailored to advance that interest.
“A statute is narrowly tailored if it targets and eliminates no more than the exact source of
the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485, 108 S. Ct. 2495, 2503, 101 L.
Ed. 2d 420 (1988) (citing City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 808-10, 104
S. Ct. 2118, 2130-32, 80 L. Ed. 2d 772 (1984)). The legislation cannot be “underinclusive,”
meaning that it cannot leave appreciable damage to the government’s purported interest
unprohibited. Reed, 135 S. Ct. at 2232. The Fourth Circuit in Cahaly v. Larosa held a similar
statute unconstitutional, finding that the statute was underinclusive.14 796 F.3d 399 (4th Cir. 2015).
The statute in question there prohibited only automated calls that were “for the purpose of making
an unsolicited consumer telephone call” or were “of a political nature including, but not limited to,
calls relating to political campaigns.” Id. at 402. The court, applying strict scrutiny, held that the
statute was not narrowly tailored to protect the government’s purported interest–to protect residential
privacy and tranquility from unwanted and intrusive automated calls. Id. The statute restricted two
types of automated calls–consumer and political–but permitted unlimited proliferation of other
types, so the statute was underinclusive. Id.
As noted, the Attorney General asserts that the statute at issue here furthers the state’s
interest in residential privacy because it prevents automated dialers from forcing unsolicited
communication on unsuspecting callers within the sanctity of their homes, and she insists that the
statute furthers the state’s interest in public safety because it prevents the “seizure of phone lines.”
The latter argument relies on a United States House of Representatives report from 1991, which
found that “[o]nce a phone connection is made, automatic dialing systems can ‘seize’ a recipient’s
telephone line and not release it until the prerecorded message is played, even when the called party
The Fourth Circuit also found that plausible less restrictive alternatives existed and that
the statute was overinclusive. Id. at 406. The court pointed out that “[c]omplaint statistics show that
unwanted commercial calls are a far bigger problem than unsolicited calls from political or
charitable organizations,” yet the statute targeted political calls. Id. Here, the statute targets
commercial calls and calls made in connection with a political campaign, but not charitable calls,
debt collection calls, or political calls outside of the campaign context.
hangs up. This capability makes these systems not only intrusive, but, in an emergency, potentially
dangerous as well.”15 Document #14 at 11 (quoting H.R. REP. NO. 102-317, at 10 (1991)). The
Attorney General fails to explain why automated calls other than commercial calls and those made
in connection with political campaigns–for example, calls encouraging individuals to contact a
member of Congress regarding a bill or to attend a townhall meeting regarding a public issue–using
automated dialing systems do not trample upon the state’s interests in residential privacy and public
safety.16 Rather, the Attorney General asserts that “Gresham and Conquest have not demonstrated
that calls from charitable organization constitute the bulk of the problem.” Document #14 at 16.
That argument misses the mark because strict scrutiny places no burden on the challenger to show
that other, unrestricted types of speech content are more detrimental to the state’s interest than the
speech content that the government chose to restrict. “When the government restricts speech, the
government bears the burden of proving the constitutionality of its actions.” United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 816, 120 S. Ct. 1878, 1888, 146 L. Ed. 2d 865 (2000).
Apart from the question of whether technological advances since 1991 have rendered this
concern obsolete, this finding merely shows that when a line is seized there is a risk that an
emergency call may be impeded. No evidence has been presented here to show that automated
telephone solicitations have prevented emergency calls from being placed or received, nor that there
is any meaningful risk of that happening.
The Attorney General relies on Missouri ex rel. Nixon v. American Blast Fax, Inc., to argue
that a distinction between two types of speech is constitutional when the distinction is “related” to
the government’s stated interest (citing 323 F.3d 649 (8th Cir. 2003)). In Nixon, however, the
Eighth Circuit applied a different, less demanding level of scrutiny–the Central Hudson test–to
evaluate the regulation of commercial speech. Id. at 653. Here, Arkansas has regulated not only
commercial speech, but political speech, and it has regulated that speech based on its content.
Furthermore, the Central Hudson test requires only that the regulation in question “directly advance”
the governmental interest asserted. The application of strict scrutiny requires that the regulation in
question not only advance the governmental interest asserted, but be the least restrictive alternative
available to directly advance that interest.
The Attorney General has submitted evidence that her office has received no complaints
about charity robocalls and an insignificant number of complaints about debt collection robocalls.
Such complaints are scarce, according to the Attorney General, in part because other statutes govern
charitable organizations and debt collectors and in part because robocalling is an ineffective method
to collect donations and debt.
Yet, the Attorney General fails to explain or show why other speech compromising the
interests of residential privacy and public safety is left unrestricted. Unlike the statute at issue in
Cahaly, which applied to calls “of a political nature including, but not limited to, calls relating to
political campaigns,” the statute here does not restrict political calls unless they are connected to a
political campaign. If the interests of privacy and safety warrant restriction of automated calls made
for a commercial purpose or in connection with a political campaign, they also warrant restriction
of other types of automated calls. The statute is underinclusive. Banning calls made through an
automated telephone system in connection with a political campaign cannot be justified by saying
that the ban is needed to residential privacy and public safety when no limit is placed on other types
of political calls that also may intrude on residential privacy or seize telephone lines. See 281 Care
Comm., 766 F.3d at 787.
The Attorney General has also failed to show that the statute is the least restrictive alternative
to achieve the state’s interests in residential privacy and public safety. “When a plausible, less
restrictive alternative is offered to a content-based speech restriction it is the Government’s
obligation to prove that the alternative will be ineffective to achieve its goals.” Playboy Entm’t
Grp., 529 U.S. at 816, 120 S. Ct. at 1888. The Fourth Circuit identified several less restrictive
alternatives to South Carolina’s content-based restriction on automated telephone calls in Cahaly,
including time-of-day-limitations and do-not-call lists. 796 F.3d at 405. Moreover, the plaintiffs
have submitted to the Court a list of statutes, codes, and regulations that other states and the District
of Columbia have implemented to regulate robocalls. Mechanisms used to temper the negative
effects of robocalling include time-of-day restrictions,17 disconnection requirements,18 and
prohibitions on calls to emergency lines.19 None of these restrictions and requirements impose a
categorical ban on robocalls made in connection with political campaigns. The Attorney General
focuses on the implausibility of three alternatives: (1) caller I.D. laws; (2) internal do-not-call lists;
and (3) an external do-not-call list, but she does not address the other alternatives and therefore fails
The plaintiffs submit that time-of-day-restrictions–for example, only permitting calls
between 9 a.m. and 9 p.m.–would serve the State’s interest in residential privacy. See ALA. ADMIN.
CODE r. 770-X-5-.17(1)(b) (2016); CAL. PUB. UTIL. CODE § 2872 (c) (West 2016); GA. CODE ANN.
§ 46-5-23(a)(2)(B) (West 2016); IDAHO ADMIN. CODE r. 31.51.02.102 (2016); 815 ILL. COMP. STAT.
ANN. 305/15(a) (West 2016); IND. CODE ANN. 24-5-14-8(b) (West 2016); LA. REV. STAT. ANN. §
45:811(2) (2016); ME. REV. STAT. ANN. tit. 10, § 1498.3 (2016); MINN. STAT. ANN. § 325E.30 (West
2016); MISS. CODE ANN. § 77-3-453(3) (West 2016); OR. REV. STAT. ANN. § 646A.372(5) (West
2016); 52 PA. CODE § 63.60(b)(2)(iv) (2016); TENN. CODE ANN. § 47-18-1502(a)(2) (2016); TEX.
UTIL. CODE ANN. § 55.125(a) (West 2015); UTAH CODE ANN. § 13-25a-103(3) (West 2016); WASH.
ADMIN. CODE § 480-120-253(5)(c) (2016).
The plaintiffs submit that a requirement that the automated telephone dialing system be
disconnected within a certain number of seconds of the call’s termination would serve the State’s
public safety interest. See ALA. ADMIN. CODE r. 770-X-5-.17(1)(d) (2016); D.C. CODE § 341701(b)(3) (2016); GA. CODE ANN. § 46-5-23(a)(2)(F) (West 2016); 815 ILL. COMP. STAT. ANN. §
305/15(b) (West 2016); IND. CODE ANN. § 24-5-14-6 (West 2016): IOWA CODE ANN. § 476.57(3)
(West 2016); KY. REV. STAT. ANN. § 367.461(2)(c) (West 2016); LA. REV. STAT. ANN. § 45:811(6)
(2016); ME. REV. STAT. ANN. tit. 10, § 1498.3 (2016); OR. REV. STAT. ANN. § 646A.372(1)(a)(A)
(West 2016); 52 PA. CODE § 63.60(b)(2)(i) (2016); TENN. CODE ANN. § 47-18-1502(a)(6) (2016);
TEX. UTIL. CODE ANN. § 55.126 (West 2015); UTAH CODE ANN. § 13-25a-103(5)(e) (West 2016);
VA. CODE ANN. § 59.1-518.3 (West 2016); WASH. ADMIN. CODE § 480-120-253(5)(b) (2016).
The plaintiffs submit that a prohibition on calls to emergency lines would serve the State’s
public safety interest. See GA. CODE ANN. § 46-5-23(a)(2)(H) (West 2016); 52 PA. CODE §
63.60(b)(2)(iii) (2016); KY. REV. STAT. ANN. § 367.461(2)(d) (West 2016); LA. REV. STAT. ANN.
§ 45:811(6) (2016); OR. REV. STAT. ANN. § 646A.372(2) (West 2016); TENN. CODE ANN. § 47-181502(a)(8) (2016); 16 TEX. ADMIN. CODE § 26.125(c)(8) (West 2016); WASH. ADMIN. CODE § 480120-253(5)(c) (2016).
to demonstrate that no less restrictive alternative is available. She also enumerates other ways in
which the plaintiffs can engage in political speech on behalf of their clients, but the cases do not say
that a speech restriction can survive strict scrutiny if other means of communication are available
to the speaker; if that were the law, the restrictions on speech that survive strict scrutiny would not
According to the United States Supreme Court, a state-imposed, content-based restriction
on speech can be enforced only if it passes the strict scrutiny test, and it is a rare case that survives
strict scrutiny. The statute at issue here imposes a content-based restriction on speech; it is not one
of the rare cases that survives strict scrutiny. The state has failed to prove that the statute at issue
advances a compelling state interest and is narrowly tailored to serve that interest. A decree will be
entered separately enjoining Leslie Rutledge, in her official capacity as Attorney General of the
State of Arkansas, from enforcing Ark. Code Ann. § 5-63-204(a)(1) insofar as that provision applies
to telephone calls made in connection with a political campaign.20
IT IS SO ORDERED this 27th day of July, 2016.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
The complaint also sought monetary damages. Because the plaintiffs sued Leslie Rutledge
only in her official capacity, the suit is in effect one against the state, which is immune from claims
for damages by virtue of the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 169-70, 105
S. Ct. 3099, 3107, 87 L. Ed. 2d 114 (1985). The plaintiffs’ claims for monetary damages are
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