PATRIOTIC VETERANS, INC. v. STATE OF INDIANA et al
Filing
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ENTRY ON MOTIONS FOR SUMMARY JUDGMENT: The IADMS is content neutral and is a valid time, place, or manner restriction on speech, and, accordingly, it does not violate the First Amendment. Therefore, the Court DENIES the Plaintiff's motion for summary judgment and GRANTS the Defendants' motion for summary judgment ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 4/7/2016.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PATRIOTIC VETERANS, INC.,
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) Cause No. 1:10-cv-723-WTL-MPB
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Plaintiff,
vs.
STATE OF INDIANA, et al.,
Defendants.
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
This cause is before the Court on the parties’ cross–motions for summary judgment (Dkt.
Nos. 32, 35). The motions are fully briefed and the Court, being duly advised, DENIES the
Plaintiff’s motion and GRANTS the Defendants’ motion for the reasons set forth below.
I.
BACKGROUND
Plaintiff Patriotic Veterans, Inc., is an Illinois non-profit corporation that exists for the
purpose of informing voters of the positions taken by candidates and office holders on issues of
interest to veterans. In furtherance of its mission, the Plaintiff wishes to place automated
interstate telephone calls to Indiana residents to communicate political messages relating to
particular candidates or issues. However, doing so would violate Indiana’s Automated Dialing
Machine Statute (“IADMS”), Ind. Code ' 24–5–14–1 et seq., which bans autodialed calls with
the following limited exceptions:
(a) 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 current business or
personal relationship.
(3) Messages advising employees of work schedules.
(b) A caller may not use or connect to a telephone line an automatic dialingannouncing device unless:
(1) the subscriber has knowingly or voluntarily requested, consented to,
permitted, 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. 1
Ind. Code ' 24–5–14–5. If the IADMS did not exist, the Plaintiff has indicated that it would
place automated phone calls related to its mission to Indiana Veterans and voters. Indiana
Attorney General Greg Zoeller has declined to exempt political calls from enforcement under the
IADMS 2 and would seek fines and injunctive relief against the Plaintiff if it placed automated
political calls to Indiana residents. Indeed, violation of the IADMS constitutes a Class C
misdemeanor. Ind. Code ' 24–5–14–10.
In an earlier ruling, the Court held that the Telephone Consumer Protection Act
preempted the IADMS. Patriotic Veterans, Inc. v. Indiana, 821 F. Supp. 2d 1074 (S.D. Ind.
2011). The Seventh Circuit reversed the Court’s ruling on preemption and remanded the case for
the Court to evaluate “whether Indiana’s statute violates the free speech rights protected by the
First Amendment to the United States Constitution.” Patriotic Veterans, Inc. v. Indiana, 736
F.3d 1041, 1054 (7th Cir. 2013).
1
The statute was amended in 2015, but the changes in form do not affect the content of
the statute or the Court’s analysis.
2 When applying another Indiana statute, the Telephone Privacy Act, a previous Indiana
Attorney General recognized “an ‘implicit exclusion’ for calls soliciting political contributions.”
See National Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 784 (7th Cir. 2006). Attorney
General Zoeller recognizes no such exclusion with regard to the IADMS and has expressly
reminded Indiana’s political parties that the statute does not exempt political calls. He also has
stated that he intends to actively enforce the statute’s provisions.
2
II.
DISCUSSION
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In this case, the parties agree that none of the relevant
facts are in dispute; rather, the resolution of this case hinges solely on issues of law.
A.
Overbreadth
The Plaintiff first argues that the IADMS is overbroad. Specifically, the Plaintiff argues
that the IADMS “sweeps into its scope protected political speech, including speech listeners wish
to receive.” Dkt. No. 33 at 14. To support a claim of overbreadth, the party before the court must
identify a significant difference between its claim that the statute is invalid on overbreadth
grounds and its claim that it is unconstitutional as applied to its particular activity. See Members
of City Counsel of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 802 (1984). Here,
the Plaintiff’s overbreadth challenge rests on the IADMS’ application to political messages. The
Plaintiff separately challenges the IADMS’ application to its own political messages. Nothing in
the record indicates that the IADMS will have any different impact on third parties’ interests in
free speech than it has on the Plaintiff’s interests. See id. Thus, the Court will limit its review of
the IADMS to the case before it and analyze it as applied to the Plaintiff.
B.
Content Neutrality
The First Amendment prohibits the enactment of law “abridging the freedom of speech.”
U.S. Const. I. A government “has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.” Police Dept. of City of Chicago v. Mosley, 408 U.S. 92,
95 (1972). “Government regulation of speech is content based if a law applies to particular
speech because of the topic discussed or the idea or message expressed.” Reed v. Town of
3
Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015). Content-based speech restrictions are subject to
strict scrutiny, id., while content-neutral laws are to be narrowly tailored to serve a significant
governmental interest and leave open ample alternative channels for communication, Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). A court must “consider whether a regulation
of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Reed, 135 S.
Ct. at 2227 (quoting Sorrell v. IMS Health, Inc. 131 S. Ct. 2653, 2664 (2011)). Distinctions
based on message may define regulated speech by particular subject matter or may define
regulated speech by its function or purpose. Reed, 135 S. Ct. at 2227.
The Supreme Court has recognized an additional category of laws that, while “facially
content neutral, will be considered content-based regulations of speech: laws that cannot be
‘justified without reference to the content of the regulated speech,’ or that were adopted by the
government ‘because of disagreement with the message [the speech] conveys.’” Id. (quoting
Ward, 491 U.S. at 791).
The IADMS defines “caller” broadly as “an individual, corporation, limited liability
company, partnership, unincorporated association, or the entity that attempts to contact, or
contacts, a subscriber in Indiana by using a telephone or telephone line.” Ind. Code § 24-5-14-2.
The central provision of the statute restricts the caller from using an automatic dialingannouncing device (“ADAD”) or connecting an ADAD to a telephone line unless the subscriber
has consented to the receipt of the message or the message is preceded by a live operator who
obtained the subscriber’s consent. As noted above, the provision applies to all messages with
three exceptions: (1) messages from school districts to students, parents, or employees; (2)
messages to subscribers with whom the caller has a current business or personal relationship; and
(3) messages advising employees of work schedules. Ind. Code § 24-5-14-5.
4
As the Seventh Circuit recognized, these limited exceptions are based on the recipient’s
implied consent:
Indiana’s statute . . . does appear to be a prohibition – it prohibits automatic
dialing devices unless consent is first obtained. There are indeed other
enumerated exemptions to the statute, but each describes a form of implied
consent: Autodialers may be used to make calls “(1) from school districts to
students, parents, or employees; (2) to subscribers with whom the caller has
a current business or personal relationship; or (3) advising employees of
work schedules.” Ind.Code § 24–5–14–5. By accepting a job, an employee
impliedly consents to phone calls from his employer for work related
scheduling purposes, as do families who enroll children at school or people
who enter into business relationships.
Patriotic Veterans, 736 F.3d at 1047. As such, these exceptions are based on the relationship of
the speaker and recipient of the message rather than the content of the message.
On its face, the IADMS does not draw a distinction based on the content of speech, the
topic discussed, or any message expressed. It does not protect specific categories of speech while
prohibiting others; rather, its exceptions are based on implied consent due to the prior
relationship between the parties, not the content of the caller’s message. Thus, the IADMS is
content neutral on its face.
In the second step of the Reed analysis, a facially content-neutral law can still be
categorized as content based if it “cannot be ‘justified without reference to the content of the
regulated speech’” or if it was “adopted by the government ‘because of disagreement with the
message the speech conveys.’” 135 S. Ct. at 2227 (brackets omitted) (quoting Ward, 491 U.S. at
791). The Defendants’ stated justification for the IADMS – their interest in protecting residential
privacy from unsolicited, harassing telephone calls – does not require reference to the content or
message. Therefore, the IADMS is content neutral.
5
This finding is consistent with decisions from other circuits. In Van Bergen v. Minnesota,
59 F.3d 1541 (8th Cir. 1995), the Eighth Circuit examined a statute similar to the IADMS. 3 The
court found that the Minnesota statute regulating the use of telephone ADADs was content
neutral because it limited the time and manner, not the content, of the communications.
Likewise, in Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996), the Ninth Circuit found that
California statutes that regulated the use of ADADs were content neutral. The Plaintiff argues
that the Court’s decision should be guided by the Fourth Circuit’s decision in Cahaly v. LaRosa,
796 F.3d 399 (4th Cir. 2015), where the court found the anti-robocall statute did not survive a
strict scrutiny analysis. However, the statute at issue in that case prohibited only those robocalls
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.” S.C. Code
Ann. ' 16-17-446(A). Based on the express language of the statute, the Fourth Circuit found that
it was content based; the statute made facial content distinctions and thus was subject to strict
scrutiny. Cahaly, 796 F.3d at 405. By contrast, the IADMS does not target political speech or
any other type of speech.
The Plaintiff argues that the IADMS burdens political speech and therefore requires the
Court to apply a strict scrutiny analysis. 4 However, the Supreme Court has analyzed contentneutral laws that impact political communications using the time, place, and manner scheme
3
The Minnesota statute restricted the use of ADADs to situations in which the subscriber
had consented to receipt of the message or the ADAD message was preceded by a live operator
who obtained consent to the playing of the message, with three exceptions: (1) messages to
subscribers with whom the caller had a current business or social relationship; (2) messages from
schools to parents, students, or employees; and (3) messages to employees advising them of
work schedules. Van Bergen, 59 F.3d at 1550.
4 The Plaintiff also alleges that the IADMS has been enforced so as to target political
calls, but the Plaintiff points to no evidence that supports this argument.
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applied to other content-neutral laws. See, e.g., Members of the City Council of Los Angeles, 466
U.S. at 803-05 (holding that a law prohibiting signs on public property in order to preserve
aesthetics could be applied to political-campaign signs).
The Plaintiff attempts to analogize the present case to cases in which the statutes at issue
specifically targeted political speech. However, any comparison to the statutes at issue in those
cases is inapposite because the IADMS does not target political speech. For example, the
Plaintiff cites to Meyer v. Grant, 486 U.S. 414 (1988), but that case dealt with a statute that
specifically prohibited the use of paid petition circulators to gather signatures to have a proposed
state constitutional amendment placed on the general election ballot. 5 Likewise, any reliance on
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is misplaced. There, the
Court held that the statute at issue suppressed political speech on the basis of the speaker’s
corporate identity. By contrast, the IADMS does not govern specific subject matter, see Reed,
135 S. Ct. at 2230 (citation omitted), and any burden to political speech is incidental. 6
C.
Time, Place, or Manner Restriction
Because the IADMS is content-neutral, it must be analyzed under the standards
applicable to restrictions on the time, place, or manner of engaging in free speech. See Ward, 491
U.S. at 791. Accordingly, the IADMS does not run afoul of the First Amendment so long as it is
5
The Court in Meyer, 486 U.S. 414, did not specifically address whether the statute was
content based. It clearly was. However, in Reed, 135 S. Ct. 2218, the Court first examined
whether the law was content based, finding that it was because it targeted specific subject matter
for differential treatment. See id. at 2230-31. Only after making that finding did the Court apply
strict scrutiny.
6 The Plaintiff argues that language from the Seventh Circuit’s opinion in National
Coalition of Prayer, Inc. v. Carter, 455 F.3d 783 (7th Cir. 2006), dictates a ruling in its favor.
However, in that case the majority was applying the balancing test established in Rowan v.
United States Postal Service, 397 U.S. 728 (1970), a test that clearly is not applicable in this
case.
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“narrowly tailored to serve a significant governmental interest” and “leave[s] open ample
alternative channels for communication of [ ] information.” McCullen v. Coakley, 134 S. Ct.
2518, 2529 (2014) (quoting Ward, 491 U.S. at 791).
1.
Significant Governmental Interest
Residential privacy is a significant governmental interest. “The [s]tate’s interest in
protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in
a free and civilized society.” Frisby v. Schultz, 487 U.S. 474, 484 (1988) (quoting Carey v.
Brown, 447 U.S. 455, 471 (1980)). Moreover, an “important aspect of residential privacy is the
protection of the unwilling listener.” Frisby, 487 U.S. at 484. As such, the state’s interest is
particularly strong where it is protecting its citizens from speech that holds the listener captive in
his or her own home. See id. at 484–85. The use of an ADAD telephone call to deliver speech
implicates this interest. See also Nat’l Coal. of Prayer, 455 F.3d at 790 (“[T] he Supreme Court
has already made clear that citizens in their own homes have a stronger interest in being free
from unwanted communication than a speaker has in speaking in a manner that invades
residential privacy.”).
Further, ADAD calls are especially disruptive because the recipient can interact only with
the computer. If a call is made by a live operator, the call recipient can inform the operator that
he does not wish to hear from the caller again. A Senate Report on the use of automated
equipment to engage in telemarketing found as follows:
[I]t is clear that automated telephone calls that deliver an artificial or
prerecorded voice message are more of a nuisance and a greater invasion of
privacy than calls placed by “live” persons. These automated calls cannot
interact with the customer except in preprogrammed ways, do not allow the
caller to feel the frustration of the called party, fill an answering machine
tape or a voice recording service, and do not disconnect the line even after
the customer hangs up the telephone. For all these reasons, it is legitimate
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and consistent with the constitution to impose greater restrictions on
automated calls than on calls placed by “live” persons.
S. Rep. No. 102-178, at 4-5, as reprinted in 1991 U.S.C.C.A.N. 1968, 1972.
While the Plaintiff characterizes the interest as “the minor annoyance of having to answer
the phone,” Dkt. No. 33 at 26, the promotional materials and website of the company the
Plaintiff has used to make the calls speak of the ability of a “ringing telephone . . . to stop[]
people and demand[] attention.” Dkt. No. 36-4 at 80. The Plaintiff indicates that at least 20 to 30
percent of calls are heard in their entirety and surmises that the recipients are therefore willing
listeners. As the Defendants point out, the recipients may simply be listening to the entire call to
try to register their objection to the calls or in the hope of being able to opt out of future calls.
The Plaintiff also indicates that 25 to 35 percent of calls go to an answering machine and
theorizes that those calls presumably bother no one. This supposition ignores the possibility that
an answering machine could be filled by such messages.
Because ADAD calls intrude on the privacy and tranquility of the home and the recipient
does not have the opportunity to indicate the desire to not receive such calls to a live operator,
the government has a substantial interest in limiting the use of unsolicited, unconsented-to
ADAD calls.
2.
Narrowly Tailored
The IADMS is narrowly tailored to reach the Government’s interests. To satisfy this
standard, a regulation need not be the least speech-restrictive means of advancing the
Government’s interests. “Rather, the requirement of narrow tailoring is satisfied ‘so long as the .
. . regulation promotes a substantial government interest that would be achieved less effectively
absent the regulation.’” Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675,
689 (1985)). Narrow tailoring in this context requires, in other words, that the means chosen do
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not “burden substantially more speech than is necessary to further the government’s legitimate
interests.” Ward, 491 U.S. at 799.
The Plaintiff argues that using a live operator would be prohibitively expensive; however,
a live operator initiating the calls would be more efficient than a live operator making and
delivering the entire message. An operator could announce the source of the call and determine if
the listener wanted to hear the message and immediately move on to the next call after hearing
the response. Use of a live operator also would allow recipients the chance to not only decline to
listen to the message at that time but also to request that the caller not call again. As such,
recipients could reduce the number of such calls that they receive.
The limits on the use of ADAD calls are designed to remedy the problems perceived with
the use of ADAD technology. Further, although the use of ADADs is limited, the live operator
and prior consent options allow the continued use of ADADs while protecting the interests of the
recipient. The Plaintiff points to less restrictive means of regulation, but, under Ward, the mere
existence of alternatives is not dispositive. Ward, 491 U.S. at 798–99 (A regulation of the time,
place, or manner of protected speech must be narrowly tailored but “need not be the least
restrictive or least intrusive means of doing so.”). Of course, there must be a “close fit” between
ends and means, McCullen, 134 S. Ct. at 2534, and such a fit exists here. Further, the IADMS
does not “foreclose an entire medium of expression,” see City of Ladue v. Gilleo, 512 U.S. 43, 56
(1994); rather, it prohibits a single method of communication: autodialed, prerecorded calls to
people who have not consented to receive those calls. Thus, it is narrowly tailored.
3.
Alternative Channels of Communication
Finally, the IADMS leaves open ample alternative channels for communication. “[E]ven
regulations that do not foreclose an entire medium of expression, but merely shift the time, place,
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or manner of its use, must ‘leave open ample alternative channels for communication.’” City of
Ladue, 512 U.S. at 56 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293 (1984)). “We recognize that ‘an adequate alternative does not have to be the speaker’s first
or best choice, or one that provides the same audience or impact for the speech.’” Weinberg v.
City of Chicago, 310 F.3d 1029, 1042 (7th Cir. 2002) (quoting Gresham v. Peterson, 225 F.3d
899, 906 (7th Cir. 2000)).
Contrary to the Plaintiff’s claim, the IADMS does not “eliminate[] their ability to have a
voice in the marketplace of ideas when elections, votes, or other dialogue of political importance
occurs.” Dkt. No. 33 at 11. The Plaintiff has pointed to evidence that the cost of live operator
calls is about eight times more expensive using the vendor that the Plaintiff has used and that
calls cannot always be made fast enough for the messages to be delivered in the time allotted.
However, as the Defendants note, the Plaintiff has ample other means with which to deliver its
message, including live telephone calls, consented to robocalls, radio and television advertising
and interviews, debates, door-to-door visits, mailings, flyers, posters, billboards, bumper stickers,
e-mail, blogs, internet advertisements, Twitter feeds, YouTube videos, and Facebook postings.
The Plaintiff is not entitled to its first or best choice or even one that provides the same audience.
Ample alternative channels of communication remain open to the Plaintiff, and thus this prong of
the test is satisfied.
III.
CONCLUSION
The IADMS is content neutral and is a valid time, place, or manner restriction on speech,
and, accordingly, it does not violate the First Amendment. Therefore, the Court DENIES the
Plaintiff’s motion for summary judgment and GRANTS the Defendants’ motion for summary
judgment.
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SO ORDERED: 4/7/16
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic communication.
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