Victory Processing et al v. Fox
ORDER denying 24 Motion for Summary Judgment; granting 28 Motion for Summary Judgment. Signed by Judge Charles C. Lovell on 2/9/2018. (MKB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
VICTORY PROCESSING, LLC, and
TIM FOX, in his official capacity as
Attorney General for the State of
Before the Court are cross-motions for summary judgment filed by the
parties. Having examined the entire record, the Court is prepared to rule.
This is a declaratory judgment action claiming violation of Plaintiffs’ civil
rights, 42 U.S.C. § 1983, by alleging a deprivation of Plaintiffs’ right to free
speech guaranteed by the First and Fourteenth Amendments of the U.S.
Constitution. (ECF No. 1, Compl. ¶ 1.)
Plaintiff VPLLC is a limited liability company organized in 2012 in the
State of Michigan, with offices in Grand Rapids, Michigan. (ECF No. 1, Compl.
¶ 1.) Plaintiff Dishaw is the managing member of VPLLC. (ECF No. 27, Dishaw
Aff. ¶ 3.) Dishaw states that VPLLC “engages in political consulting and
conducts data gathering and dissemination projects regarding political campaigns,
election races, ballot initiatives . . . throughout the United States, primarily
through the use of automated telephone calls.” (ECF No. 27, Dishaw Aff. ¶ 5.)
Plaintiffs VPLLC and Dishaw assert that a Montana statute, Mont. Code
Ann. § 45-8-216, enacted in 1991, deprives them of the ability to convey political
messages to Montana voters. The statute provides that
(1) A person may not use an automated telephone system, device, or
facsimile machine for the selection and dialing of telephone numbers
and playing of recorded messages if a message is completed to the
dialed number for the purpose of:
(a) offering goods or services for sale;
(b) conveying information on goods or services in soliciting sales or
(c) soliciting information;
(d) gathering data or statistics; or
(e) promoting a political campaign or any use related to a political
(2) This section does not prohibit the use of an automated telephone system,
device, or facsimile machine described under subsection (1) for purposes of
informing purchasers of the receipt, availability for delivery, delay in
delivery, or other pertinent information on the status of any purchased
goods or services, of responding to an inquiry initiated by any person, or of
providing any other pertinent information when there is a preexisting
business relationship. This section does not prohibit the use of an
automated telephone system or device if the permission of the called party is
obtained by a live operator before the recorded message is delivered.
Mont. Code Ann. §45-8-216 (2017).
II. LEGAL STANDARD
Summary judgment is appropriate when “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.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is
genuinely disputed must support that assertion by ... citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits, or declarations, stipulations ... admissions, interrogatory
answers, or other materials,” or by “showing that materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).
The summary judgment movant bears the initial burden as to the elements of
the causes of action about which there are no genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The burden then shifts to the non-movant to establish the existence of a
material fact. Id. The non-movant “must do more than simply show that there is
some metaphysical doubt as to the material facts” by “com[ing] forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)). A
disputed fact raises a genuine issue for trial if it would permit a reasonable jury to
return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must construe
disputed facts in the light most favorable to the non-moving party. Ellison v.
Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). However, bare assertions
standing alone are insufficient to create material facts. Liberty Lobby, 477 U.S. at
247-48. If the burden shifts, the non-moving party must produce “significant
probative evidence,” and “may not rely merely on the unsupported or conclusory
allegations of [his] pleadings.” Coverdell v. Dep’t of Soc. & Health Servs., 834
F.2d 758, 769 (9th Cir. 1987).
Article III of the U.S. Constitution states the “case or controversy”
requirement for subject matter jurisdiction. Allen v. Wright, 468 U.S. 737, 750,
104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Plaintiffs’ unverified Complaint asserts a
First Amendment pre-enforcement challenge against Montana’s robocalling
statute. Defendants challenge Plaintiffs’ standing to present this claim because the
claim rests on the legal rights and interests of others, and parties ordinarily do not
enforce the constitutional rights of others. In order to demonstrate third-party
standing, Plaintiffs must show that they have (1) suffered an injury in fact, (2)
have a close relation to the third party, and (3) the third party is hindered from
protecting his or her own interests. Wasson v. Sonoma County Junior College,
203 F.3d 659, 663 (9th Cir. 2000) (citing Powers v. Ohio, 449 U.S. 400, 410-11,
111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). Plaintiffs seem to meet the first two
prongs of this test in that Plaintiffs may lose business and profits in Montana if
they cannot send fully-automated political campaign robocalls to Montana
residences (and can be fined if they do), and there is a contractual relationship
between Plaintiffs and their political campaign customers. The Court does not see
any hindrance, however, to the third party’s ability to litigate this question
directly, and Plaintiffs’ refusal to divulge the name of any potential customer (on
grounds of confidentiality) causes the Court to wonder somewhat about the nature
and extent of such customer interest, if any. On the other hand, an obvious
hindrance to obtaining customers willing to be named in a suit would be the
Montana statute’s prohibition itself.
Because of concerns regarding the “chilling effect of sweeping restrictions”
on speech, the Supreme Court has endorsed pre-enforcement actions. Ariz. Right
to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). “It
is sufficient for standing purposes that the plaintiff intends to engage in ‘a course
of conduct arguably affected with a constitutional interest’ and that there is a
credible threat that the challenged provision will be invoked against the plaintiff.”
Italian Colors Restaurant v. Becerra, 878 F.3d 1165 (9th Cir. 2018) (citing LSO,
Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000)). The Court should consider
“(1) the likelihood that the law will be enforced against the plaintiff, (2) whether
the plaintiff has shown, ‘with some degree of concrete detail,’ that she intends to
violate the challenged law; and (3) whether the law even applies to the plaintiff.”
Italian Colors Restaurant, 878 F.3d at 1172 (citing Lopez v. Candaele, 630 F.3d
775, 786 (9th Cir. 2010)).
Clearly, Montana’s robocalling statute applies to Plaintiffs’ stated intent to
send political campaign robocalls to Montana households. Plaintiffs were
incorporated in Michigan in 2012 and claim to have been engaged in selling
robocall services outside of Montana. Plaintiff claims to have had potential
Montana clients decide against hiring Victory Processing because Montana’s
robocalling statute stands in the way. Defendants point out that Plaintiff Dishaw’s
affidavit is devoid of facts relating to time, date, or specific instances of conduct
as to either Plaintiff’s intent to violate the law or as to Defendants’ intent to
enforce the law. It is troubling that Plaintiffs refused to divulge any information
during discovery that would have supported their alleged intention and
opportunity to violate the law. Plaintiffs’ refusal to divulge the names of any
potential customers (on grounds of confidentiality) provides only a thin basis for
standing, but the Court believes the law applies to Plaintiff’s proposed robocalls,
that the law arguably affects a constitutional interest, that Plaintiffs have shown an
intention to violate Montana’s robocalling law, and that it is likely Montana would
enforce its law against Plaintiffs if Plaintiffs were to register, for example, with the
State to conduct robocalling in Montana. See infra n. 1. Furthermore, selfcensorship may suffice to state a sufficient injury “even without an actual
prosecution.” Italian Colors Restaurant, 878 F.3d at 1173 (quoting Virginia v.
Am. Booksellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)).
When a threatened enforcement implicates First Amendment rights, “the
[standing] inquiry tilts dramatically toward a finding of standing.” LSO, 205 F.3d
at 1155. The Court finds that it is reasonable for Plaintiffs to modify their
behavior to avoid violating this statute and to avoid a credible threat of its
enforcement. Therefore, the Court concludes that Plaintiffs have established
standing to proceed with their Complaint.
CAPACITY TO SUE UNDER MONTANA LAW.
Defendants argue that Montana’s door-closing statute1 bars Plaintiffs’ claim.
However, Plaintiffs’ Complaint is filed pursuant to 28 U.S.C. 1331 (federal
question jurisdiction). Therefore Defendants’ argument regarding Montana’s
door-closing statute is not well taken. See Woods v. Interstate Realty Co., 337
U.S. 535, 538 (1949) (barring claim pursuant to state door-closing statute when
claim is brought pursuant to diversity jurisdiction).
Defendant Fox asserts that a compelling and long-respected government
interest is served by Montana’s statutory prohibition on robocalls made to
nonconsenting parties. Mont. Code Ann. § 45-8-216 . “‘The State’s interest in
Mont. Code Ann. § 35-1-1027(1) provides that “[a] foreign corporation
transacting business in this state without a certificate of authority [to transact
business pursuant to M.C.A. §35-1-1206] may not maintain a proceeding in any
court in this state until it obtains a certificate of authority.”
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, 108 S.Ct. 2495, 2502 (1988) (quoting Carey v. Brown, 447 U.S. 455, 471,
100 S.Ct. 2286, 2296, 65 L.Ed.2d 263 (1980)). “The First Amendment permits the
government to prohibit offensive speech as intrusive when the ‘captive’ audience
cannot avoid the objectionable speech.” Id. at 487, 108 S.Ct. at 2504. What is
offensive speech includes speech that is disruptive and unwanted. In addition,
“the home is different.” Id., 487 U.S. at 484, 108 S.Ct. at 2502.
In Frisby, the Supreme Court stated, “we have repeatedly held that
individuals are not required to welcome unwanted speech into their own homes
and that the government may protect this freedom.” Id. Obviously, a door-to-door
visitor may not put a foot in a doorway and insist upon making an unwanted
presentation to a resident who has no desire to receive the solicitation. See Kovacs
v. Cooper, 336 U.S. 77, 86, 69 S.Ct. 448, 453 (1949) (dicta). A visitor may not
even knock or ring a doorbell when a no-solicitation sign is posted pursuant to
statute or ordinance. See Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369,
appeal dismissed, 335 U.S. 875, 69 S.Ct. 240, 93 L.Ed. 418 (1948). Likewise, an
addressee can demand that the Postmaster stop delivering offensive mail from a
particular sender. Rowan v. Post Office Dep’t, 397 U.S. 728, 734, 90 S.Ct. 1484,
1489, 25 L.Ed.2d 736 (1970) (no-junk-mail list). In all these circumstances, it is a
privacy right of any person to either decline or consent to any communication
utilizing one’s own private property. “Nothing in the Constitution compels us to
listen to or view any unwanted communication, whatever its merit....” Id. at 737.
Likewise, it is a privacy right for a person to be able to also request that no further
communication be made, thereby reducing the number of future interruptions. As
the Supreme Court stated in Rowan regarding receipt of unwanted mail--and just
as applicable to the receipt of unwanted robocalls or doorstep solicitations-- “[i]n
today’s complex society we are inescapably captive audiences for many purposes,
but a sufficient measure of individual autonomy must survive to permit every
householder to exercise control over unwanted mail.” Id. at 736, 90 S.Ct. at 1490.
“There is simply no right to force speech into the home of an unwilling listener.”
Frisby, 487 U.S. at 485, 108 S.Ct. at 2503. Our respect for the privacy of the
residence and desire for freedom from unwanted household intrusions (“the right
to be left alone”) is traditional and time-honored. The federal “Automated
Telephone Consumer Protection Act of 1991 (“TCPA”), Pub. L. No. 102-243, 47
U.S.C. § 227, et seq., prohibited robocalls to cellphones and the use of prerecorded
voice messages to residential lines without the permission of the recipient. In its
legislative history, it is stated that
[t]he reported bill will result in a significant benefit in protecting the
personal privacy of residential telephone subscribers. The evidence
gathered by the Committee indicates that a substantial proportion of
the public believes that these calls are a nuisance and an invasion of
one’s privacy rights in the home. The Supreme Court has recognized
explicitly that the right to privacy is founded in the Constitution, and
telemarketers who place telephone calls to the home can be
considered “intruders” upon that privacy.
(ECF No. 30-3, Senate Report 102-178 (Oct. 8, 1991).) (The parties do not
address robocalls to cell phones primarily because the TCPA requires written or
oral consent for robocalls to cell phones.) The government interest at issue is one
of the pillars of civil society, and so this Court agrees with the Defendants that
governmental protection of residential privacy is a compelling government
interest. See also, Brickman v. Facebook, Inc., 230 F.Supp.3d 1036, 1046 (N.D.
Cal. 2017) (holding in TCPA case that protection of residential privacy is a
compelling interest); Holt, 240 F.Supp.3d 1021, 1033 (N.D. Cal. 2017) (same).
The common thread among Montana’s prohibited robocalls appears to be
that all of the conduct listed in subsection 216(1)(a)-(e) is performed for the
primary benefit of the sender of the message and not for the primary benefit of the
recipient of the message. Furthermore, in each instance, the sender of the robocall
and the recipient are strangers to each other. The third common thread between
the subsection 216(1)(a)-(e) conduct is the recipient’s lack of prior consent for the
robocall. Notably, all these prohibited robocalls are permitted under the statute
when the call is introduced by a live operator.
And there are exceptions to the live operator requirement. The common
thread for the exceptions granted in subsection 216(2) is that the excepted
robocalls provide information that recipients clearly wish to receive because it is
of benefit to them. For example, such robocalls notify the recipient that an item
previously ordered is now in stock; an item previously ordered is available for
delivery or pickup; or an expected package delivery is delayed by bad weather,
etc. All such robocalls rely on a pre-existing business relationship between the
parties and are also made for the primary benefit of the recipient. The third
common thread is that these calls can be fairly deemed to be supported by implied
Very significantly, subsection (2) of § 45-8-216 provides a global exception
such that any prohibited robocall can be made legal under Montana law simply by
prefacing the robocall with a live operator who obtains the recipient’s permission
for the playing of the recorded message. Not only can a recipient then decline to
receive that message, but also the recipient can request that no further calls be
made, thereby reducing the number of interruptions in the future.
Surveying the entire statute as a whole, the Court finds that it is organized in
a logical and consistent fashion. The common thread running throughout the
statute is that robocalls are prohibited without actual or implied consent.
Robocalls made within the context of a preexisting relationship and made for the
primary benefit of the recipient are not prohibited by this statute and do not
require a live operator. In addition, robocalls made pursuant to actual consent are
not prohibited. Only robocalls lacking in actual or implied consent are prohibited,
and this prohibition has absolutely nothing to do with the content of any of those
messages. In other words, the justification for the facially content-based
discrimination holds up because there is no underlying discriminatory intent and
the government’s interest in protecting privacy is compelling.
Plaintiffs argue that protection of residential privacy is not a compelling
government interest and claims that it has not been found to be so by any court,
except perhaps for the two lower court cases in Brickman and Holt. However, the
Fourth Circuit did assume in Cahaly, a case relied upon by Plaintiffs, that the
government interest in protecting residential privacy and tranquility is a
compelling one. See Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015). The
phrase, ‘a man’s home is his castle’ (anachronistic as it may be), reflects the longstanding societal and common-law tradition that prizes and protects residential
privacy and tranquility. In Patriotic Veterans, Inc. v. Zeller, 845 F.3d 303, 305
(2017), wherein a content-neutral robocall statute requiring express consent/live
operator was upheld under intermediate scrutiny as a reasonable manner
restriction, it is very well stated that “[e]very call uses some of the phone owner’s
time and mental energy, both of which are precious.” This Court cannot subscribe
to Defendant’s argument that a government interest that is “certainly of the highest
order in a free and civilized society” is not also a compelling government interest.
See Frisby, 487 U.S. at 484, 108 S.Ct. at 2502.
VPLLC and Dishaw argue that the 45-8-216(1)(e) prohibition on robocalls
promoting a political campaign or any use related to a political campaign is not
content neutral. They point to the statute itself: subsection 216(1)(e) explicitly
states that robocalls “promoting a political campaign or any use related to a
political campaign” are prohibited (if not introduced by a live operator as provided
in subsection 216(2)).
There can be no doubt that Montana’s robocall statute is content-based. The
statute targets five types of speech (commercial sales, commercial advertising,
surveys and polling, and campaigning) for differential treatment than other types
of speech. Pursuant to Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2230
(2015), a statute that identifies particular topics and subject matter for differential
regulation is facially content-based. This Court therefore distinguishes Bland v.
Fessler, 88 F.3d 729 (9th Cir. 1996), and Gresham v. Picker, 214 F.Supp.3d 922
(E.D. Cal. 2016), both of which analyzed the California robocall statute pursuant
to intermediate scrutiny, because in those cases, the California robocall statute did
not single out political subject matter for special restrictions in the way that
Montana’s robocall statute does.
However, it is clear that Montana’s content-based identification of subject
matter is not intended to suppress discussion of the topic or of any viewpoint. A
proliferation of campaign robocalls could lead easily to a veritable arms-race of
political campaign robocalls and cause the exact privacy problem that the Montana
statute is designed to prevent: the annoyance and harassment of Montanans in
their households–an invasion of the close. Indeed, Plaintiffs analyze the political
campaign speech prohibition in subsection (1)(e) by ignoring the rest of the
statute. Taken altogether, the entire statute demonstrates that it is not organized by
the content of speech at all, but instead is organized whether or not the robocalls
are consented to by the recipient. Whether this statute is content based or content
neutral is thus a closer question that might first appear, but this Court concedes
that the Montana statute is content-based under the Supreme Court’s holding in
While not disregarding the content-based nature of the Montana robocall
restriction, the Court also considers whether the justification for the statute is
content based or content neutral. The Supreme Court has defined content
neutrality as follows: “A regulation that serves purposes unrelated to the content
of expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others. Government regulation of expressive activity
is content neutral so long as it is ‘justified without reference to the content of the
regulated speech.’” Ward, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754 (quoting Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065,
3069, 82 L.Ed.2d 221 (1984) (internal citations omitted)). The Montana robocall
statute does pass the Ward justification test because its purpose is actually content
The justification for Montana’s robocall statute is the compelling
government interest in residential privacy and tranquility. Montana’s robocall
statute has no “disagreement with the message [a political robocall] conveys.”
Ward, 491 U.S. at 791, 109 S. Ct. at 2753-54. The general prohibition on
robocalls between strangers without consent, even as applied to political speech,
carries with it no “scent of government favoritism in the free market of ideas.”
Bland, 88 F.3d 729, 734 (9th Cir. 1996). It is clear that the statute categorizes
political messages on an equal footing with the other named categories of
messages (sales, advertisements, polling, and data gathering), and that the salient
characteristics of these messages are that they are (a) unconsented, (b) between
strangers, and (c) primarily of benefit to the sender, not the recipient. In addition,
the section 216(a)(1)-(e) categories make up the bulk of robocall communications.
On the other hand, the subsection 216(2) messages that are exempt from the
live-operator requirement are those messages arising in the context of (a) implied
consent, (b) a preexisting relationship, and (c) primarily of benefit to the recipient,
not the sender. These exceptions to the general robocalling rule make up a much
smaller group of communications. Therefore, the manner in which the Montana
statute draws a bright line between the two groups is not organized by the content
of the messages, but divides along the characteristics of consenting, pre-existing
Plaintiffs cite Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015), and Reed v.
Town of Gilbert, Ariz., to support their allegation that Montana’s robocall statute
is content based. In Cahaly, a South Carolina anti-robocall statute prohibited
robocalls “of a political nature,” and a Fourth Circuit panel held that this was a
content-based restriction that was not narrowly tailored to the compelling
governmental interest in “protecting[ing] residential privacy and tranquility from
unwanted and intrusive robocalls.” Id. at 405. However, the statute defined a
robocall as calls not introduced by a live operator. S.C. Code Ann. § 16-17446(A). Still, the South Carolina’s robocall statute explicitly prohibited all
political campaign robocalls unless the recipient had made an express request for
it. Commercial robocalls were also prohibited by the South Carolina statute, but
more generous exceptions were allowed for this type of speech: robocalls for debt
collection and calls arising from business relationships were permitted.
The South Carolina statutory scheme explicitly targeted robocalls of a
political nature. Furthermore, in applying strict scrutiny, the Fourth Circuit panel
found that the South Carolina statute was overinclusive, underinclusive, and not
narrowly tailored because many less restrictive alternatives were available other
than a nearly complete prohibition. Id. at 405.
That statutory scheme differs in some ways from Montana’s M.C.A. § 45-8216. Political robocalls are permitted--as are all Montana robocalls--with a live
operator. Unlike South Carolina’s statute, which addresses only two categories of
robocalls, Montana’s statute identifies five different categories of robocalls that
together comprise the vast majority of robocalls, and Montana’s entire statutory
scheme functions consistently, logically, and independently of any message
content or topic preference to promote a compelling government interest.
This Court also distinguishes Gresham v. Rutledge, 198 F.Supp.3d 965, 970
(E.D. Ark. 2016) (holding that the Eleventh Amendment bars a claim for money
damages in a § 1983 suit by a political consultant who sells robocalling services),
because the Arkansas robocall statute addressed by that case did not provide the
live-operator option that is permitted in Montana. This Court also disagrees with
the Rutledge finding that protection of residential privacy is not a compelling
governmental interest. Rutledge relies for that conclusion on Carey v. Brown, 447
U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), which merely held--as a denial
of equal protection--that a law prohibiting street and sidewalk picketing of
residences and dwellings (for the stated purpose of protecting residential privacy),
but at the same time exempting labor picketing of places of employment, unfairly
discriminated between types of speech in a public forum.
Both Cahaly and Rutledge rely on Reed v. Town of Gilbert, Ariz., 135 S.Ct.
2218, 192 L.Ed.2d 236 (2015), for the proposition that a statute which describes
particular types of subjects for communication is content-based on its face and
must automatically receive strict scrutiny.
The Town of Gilbert, Arizona, passed a Sign Code that prohibited any
outdoor sign without a permit, but gave exemptions for 23 categories of signs,
including “Ideological Signs,” “Political Signs,” and “Temporary Directional
Signs Relating to a Qualifying Event.” Id. at 2224. Surprisingly, it was the latter
exemption that was at the heart of the controversy in Reed.
These exempted categories of signs were permitted by the Sign Code, but
only with strict conditions attached. For example, Ideological Signs could be 20
feet square and could be placed anywhere and for any amount of time. Political
Signs could be 16 square feet on private property and 32 square feet on
nonresidential property but limited as to time for 60 days before a primary up until
15 days after a general election. Receiving the most restrictive treatment, a
“Temporary Directional Sign” could be allowed, but no more than four such signs,
no bigger than six square feet, on a particular property; furthermore these
temporary directional signs were permitted from no more than 12 hours before and
1 hour after the qualifying event.
In fact, at the beginning of the Reed litigation, which was brought by Pastor
Reed on behalf of his congregation at the Good News Community Church, this
exemption was originally titled “Religious Assembly Temporary Direction Signs,”
and it was directed specifically at religious congregations that had no fixed place
of worship. When Pastor Reed’s litigation was first filed against the Town of
Gilbert, these directional signs could be placed no more than 2 hours before and
one hour after the religious services, which posed a severe problem for Pastor
Reed because his congregation did not know where the service would be held until
the signs went up. This is content-based regulation because it “singles out specific
subject matter for differential treatment, even if it does not target viewpoints
within that subject matter.” Reed, 135 S.Ct. at 2230.
Although not plainly discussed as a case of religious discrimination, the
strict scrutiny accorded in Reed was plainly warranted on multiple grounds. The
content-neutral justification given by the Town of Gilbert for its noticeably stricter
treatment of an itinerant church group was simply belied by the town’s very
restrictive treatment of that same group. In Reed, the facially content-based nature
of the statute actually did disclose at least the scent of discriminatory animus
underlying a superficially neutral justification. This Court distinguishes Reed on
that basis, because that type of underlying discrimination against an entire group
or an entire subject matter or a viewpoint is not present in this case.
LEVEL OF SCRUTINY.
It seems to this Court that a reasonable manner restriction on speech in a
private forum should receive intermediate scrutiny if the governmental
justification for the restriction is genuinely content neutral.2 That is certainly the
case here, and the Court finds that all the intermediate scrutiny factors are satisfied
Under intermediate scrutiny, a content-neutral governmental speech
restriction (a noise ordinance) of a public forum (a public band shell) is
permissible as to reasonable time, place, or manner restrictions. Ward v. Rock
Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661
(1989). Intermediate scrutiny means that because the content of the speech itself
is not being regulated, the Court should focus its review on the reasonableness of
the time, place, or manner of the regulation. The five-factor test for this review is
(1) whether the regulation is within the constitutional power of a government; (2)
whether the restriction furthers an important or substantial governmental interest;
(3) whether the governmental interest is unrelated to the suppression of free
expression; (4) whether the regulation is narrowly tailored (i.e., is no greater than
is essential to the furtherance of the governmental interest); and (5) whether the
regulation leaves open ample alternative channels of communication. United
States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)
(factors 1-4); Ladue v. Gilleo, 512 U.S. 43, 56, 114 S.Ct. 2038, 2046, 129 L.Ed.2d
36 (1994) (finding that ordinance prohibiting residential signs eliminates an
important medium of speech).
by the Montana robocall statute. However, the Court is mindful of the Supreme
Court’s insistence in Reed v. Town of Gilbert, Ariz., that a facially content-based
statute must receive strict scrutiny regardless of the genuine nature of the contentneutral justification. Therefore, the Court will utilize a traditional strict scrutiny
A governmental speech restriction that is content-based must meet strict
scrutiny. Reed, 135 S.Ct. at 2231. Although this is rare, it is certainly possible.
See Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666, 191 L.Ed.2d 570 (2015)
(campaign speech of judicial candidate properly restricted to serve a compelling
government interest). Strict scrutiny requires that a government’s restriction on
speech further a compelling government interest and be narrowly tailored to
achieve that purpose. Reed, 135 S.Ct. At 2231 (citing Arizona Free Enterprise
Club’s Freedom Club PAC v Bennett, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664
(2011)). There are other requirements. For example, a less restrictive alternative
that meets the government’s purpose ought to be utilized, see United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865
(2000), but on the other hand the “least restrictive or least intrusive means” is not
required, see Bland v. Fessler, 88 F.3d at 736 (citing Ward, 491 U.S. at 798, 109
S.Ct. at 2757-58) . The governmental restriction must not be overinclusive by
restricting protected speech unnecessarily, and it must not be underinclusive by
leaving “appreciable damage to [the government’s] interest unprohibited.”
Cahaly, 796 F.3d at 405 (internal citations omitted).
TIME, PLACE, MANNER RESTRICTION.
As explained by the Ninth Circuit in Bland v. Fessler, 88 F.3d 729, 733 (9th
Cir. 1996), the live-operator requirement is a manner restriction. The purpose of
the restriction is to give control over the playing of the recorded message to the
recipient, who can further request that no future calls be made. The underlying
purpose of this restriction is to protect the privacy and tranquility of the person
receiving the robocall. The statutory exemption that is provided to established
business relationships is content neutral and consistent with the overall scheme
because the preexisting relationship supports a finding of implied consent.
Having determined that Montana’s robocall statute is content based, but that
the it serves a compelling governmental interest, the next question is whether the
statute is narrowly tailored to address that governmental interest. First, it is clear
robocalls are by and large permissible in most contexts in Montana. The statute
narrowly tailors to the governmental interest in protecting the peace and
tranquility of the household by requiring, in most instances, that a live operator
give control over the message to the recipient for the purpose of consenting,
declining, or asking to be taken off the calling list. Only calls fairly categorized as
being between related parties, and for which implied consent can reasonably be
inferred, are relieved of the live-operator requirement, and therefore the Montana
statute is not underinclusive.
There is not a less restrictive alternative that would serve Montana’s
purpose. For example, a time-of-day restriction (e.g., before 8:00 a.m. and after
9:00p p.m.) is a minimal benefit when householders (such as infirm persons who
may have trouble getting to a phone, mothers with small children, and people
working in their homes, to name just a few categories) are exposed to automated
calls for twelve or more hours each day. Likewise, a recording disclosing a
caller’s identity is cold comfort for a blaring recorded message that is unwanted,
and do-not-call lists are notoriously ineffective. The Montana statute is therefore
not overinclusive because all of the robocalls that are reasonably likely to be
unwelcome are covered by the statute; the Montana statute is not underinclusive
because the few categories of calls not restricted by the live-operator requirement
are reasonably understood to have implied consent and therefore need no
ALTERNATIVE MEANS OF COMMUNICATION AND LESS
RESTRICTIVE ALTERNATIVE REQUIREMENTS.
There are two additional aspects to the overinclusive/underinclusive narrow
tailoring question. First, the restriction “must leave open ample alternative
channels for communication of the information.” Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221
(1984). Second, the restriction must be no more restrictive than necessary to serve
the governmental interest, but it need not be the least restrictive or least intrusive
means possible. Ward, 491 U.S. at 788-89, 109 S.Ct. at 2758. Montana’s
robocalling statute still leaves ample means of communication for individuals and
organizations. Advance permission for robocalls can be obtained from donors and
potential donors. Use of a live operator to introduce the recorded message may be
an option. An alternative is to use live operators to communicate the entire
message. There are many other channels of communication. There is leafletting
and pamphleting of residences and street corners. There are billboards, posters,
and yard signs. Bulk mailing is available. Internet and other media provide
enormous opportunities for bulk message distribution. Obviously there are ample
alternative channels for Plaintiffs’ communications. Because a live-operator
requirement is less restrictive than a complete prohibition while still serving the
government’s interest as no other less restrictive alternative can do, the “less
restrictive alternative” requirement is satisfied.
A telephone system generally, and certainly a residential telephone in
particular, is a privately-owned means of communication. We are not examining a
traditional public forum where content-based restrictions examined with strict
scrutiny would generally weigh against constitutionality. The uses for a private
communications facility should be determined in the first instance by the choices
made by the owner of that private property. In the context of robocalls, Montana’s
statutory restrictions on robocalls are intended to preserve, not diminish, the
private property owner’s control over his or her property and personal choices
regarding receipt of communications, both of which are integral elements of
Political speech is precious under the First Amendment. The prohibition
here of the promotion of a political campaign must meet a high bar to survive this
challenge. It does so on its face by exempting robocall use if the permission of the
called party is obtained by a live operator before the recorded message is
delivered. It is this permission which is the saving grace of the Montana statute in
this facial challenge.
The Court concludes that Montana’s robocall statute is a constitutionally
permissible content-based regulation of speech. The governmental interest
advanced by the statute is the compelling interest in protecting residential privacy
and tranquility. The Montana statute is narrowly tailored to that government
interest by preserving control and choice for the householder and leaving ample
alternative (including all of the more traditional) channels of communication for
the protected political speech. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment (ECF No. 28) is GRANTED, and Plaintiff’s Motion for Summary
Judgment (ECF No. 24) is DENIED. Plaintiffs’ Complaint and this action are
both DISMISSED, and all relief is denied. Let judgment enter.
Dated this 9th day of February, 2018.
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