Cahaly v. LaRosa et al

Filing 27

ORDER AND OPINION denying as moot 14 Motion for Preliminary Injunction; granting 14 Motion for Partial Summary Judgment; granting in part and denying in part 17 Motion for Summary Judgment; finding as moot 25 Motion to Expedite as set out. Signed by Honorable J Michelle Childs on 6/10/2014.(mbro, ) Modified on 6/10/2014 to edit text (mbro, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Robert C. Cahaly,

)
)
Plaintiff,
)
)
v.
)
)
Paul C. LaRosa, III, Reginald I. Lloyd,
)
South Carolina Law Enforcement Division, )
)
Defendants.
)
___________________________________ )

Civil Action No. 6:13-cv-00775-JMC

ORDER AND OPINION

Plaintiff Robert C. Cahaly is a Republican political consultant who has engaged and
seeks to continue to engage in political speech and political campaigns in the state of South
Carolina. (ECF No. 1-2 at 8.) Plaintiff filed the instant action on October 31, 2012, in South
Carolina state court claiming pursuant to 42 U.S.C. § 1983 that provisions of South Carolina
state law enforced by Defendants Paul C. LaRosa, III, Reginald I. Lloyd, and South Carolina
Law Enforcement Division (“SLED”) (collectively referred to as “Defendants”) violated his First
Amendment right of free speech. (ECF No. 1-2.) Plaintiff requested declaratory relief as well as
an injunction to enjoin Defendants from enforcing the relevant South Carolina Code sections.
(Id. at 18–19.) Plaintiff also alleged state law claims of false imprisonment and malicious
prosecution. (Id. at 19–21.)
Defendants filed a notice of removal on March 22, 2013. (ECF No. 1.) This matter is
before the court on Plaintiff’s Motion for Preliminary Injunction, or in the Alternative, for Partial
Summary Judgment (ECF No. 14), Defendants’ Motion for Summary Judgment (ECF No. 17),
and Plaintiff’s Motion to Expedite the Decision (ECF No. 25). For the reasons set forth below,
the court GRANTS Plaintiff’s motion for partial summary judgment and thereby DENIES AS

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MOOT Plaintiff’s motion in the alternative for a preliminary injunction and Plaintiff’s motion to
expedite the court’s decision. The court further GRANTS IN PART and DENIES IN PART
Defendants’ motion for summary judgment.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
South Carolina Code § 16-17-446 (2003) which incorporates certain components of § 1617-4451 (2003 & Supp. 2013) is at the heart of the analysis of Plaintiff’s constitutional claims.
Therefore, the pertinent provisions are identified herein. Section 16-17-446, entitled “Regulation
of automatically dialed announcing device (ADAD),” states as follows:
(A) Adad means an automatically dialed announcing device which delivers a
recorded message without assistance by a live operator for the purpose of
making an unsolicited consumer telephone call as defined in Section 16-17445(A)(3).2 Adad calls include automatically announced calls of a political
nature including, but not limited to, calls relating to political campaigns.
(B) Adad calls are prohibited except:
(1) in response to an express request of the person called;
(2) when primarily connected with an existing debt or contract, payment
or performance of which has not been completed at the time of the
call;
(3) in response to a person with whom the telephone solicitor has an
existing business relationship or has had a previous business
relationship.
(C) Adad calls which are not prohibited under subsection (B):
(1) are subject to Section 16-17-445(B)(1), (2), and (3);
(2) shall disconnect immediately when the called party hangs up;
(3) are prohibited after seven p.m. or before eight a.m.;
(4) may not ring at hospitals, police stations, fire departments, nursing
homes, or vacation rental units.
(D) A person who violates this section, upon conviction, must be punished as
provided in Section 16-17-445(F).

1
Where the court refers to § 16-17-446 within this opinion and order, it also refers to those
portions of § 16-17-445 that are incorporated within § 16-17-446.
2
While this provision references § 16-17-445(A)(3), that section defines “Prize promotion.” See
S.C. Code Ann. 16-17-445(A)(3). Because it is § 16-17-445(A)(4) that defines “unsolicited
consumer telephone call”, the court presumes that the statute’s referencing of § 16-17-445(A)(3)
is a scrivener’s error. Accordingly, the court denies Plaintiff’s request that the court declare that
§ 16-17-446’s reference to “ADADs” only encompasses messages containing a prize promotion.
(See ECF No. 14-1 at 29–31.)
2

S.C. Code Ann. § 16-17-446 (emphasis added). Section 16-17-445 is entitled “Regulation of
unsolicited consumer telephone calls” and states, in relevant parts:
(A) As used in this section:…
(4) “Unsolicited consumer telephone call” means a consumer
telephone call other than a call made:
(a) in response to an express request of the person called;
(b) primarily in connection with an existing debt or contract,
payment, or performance of which has not been completed
at the time of the call; or
(c) to a person with whom the telephone solicitor has an
existing business relationship or had a previous business
relationship….
(B) A telephone solicitor who makes an unsolicited consumer telephone call
must disclose promptly and in a clear conspicuous manner to the person
receiving the call, the following information:
(1) the identity of the seller;
(2) that the purpose of the call is to sell goods or services;
(3) the nature of the goods or services;…
(F) The department3 shall investigate any complaints received concerning
violations of this section. If the department has reason to believe that there
has been a violation of this section, it may request a contested case hearing
before the Administrative Law Court to impose a civil penalty…The
department may also bring a civil action in the Court of Common Pleas
seeking other relief, including injunctive relief, as the court considers
appropriate against the telephone solicitor. In addition, a person who violates
provisions of this section is guilty of a misdemeanor and, upon conviction for
a first or second offense, must be fined not more than two hundred dollars or
imprisoned for not more than thirty days…. Each violation constitutes a
separate offense for purposes of the civil and criminal penalties in this
section.
S.C. Code Ann. § 16-17-445 (emphasis added).
Collectively, §§ 16-17-446 and 16-17-445 have the impact of prohibiting consumer and
politically-related unsolicited calls made by ADADs, also referred to as “robocalls,” with some
exceptions. See S.C. Code Ann. §§ 16-17-446 and 16-17-445. Excepted from § 16-17-446’s
general ban on political and commercial robocalls are calls that are based on some form of

“Department” refers to the Department of Consumer Affairs.
445(A)(6).
3

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S.C. Code Ann. § 16-17-

consent by the person called or some existing relationship between the person called and the
caller. See S.C. Code Ann. § 16-17-446(B). Even where a political or commercial robocall
meets the exception criteria, the statute requires that the caller announce certain identifying
information about the source of the call and the call’s purpose. S.C. Code Ann. §§ 16-17446(C), 16-17-445(B). Where a robocaller violates the provisions of the statute, he may be
punished by civil penalty, injunctive relief, or criminal misdemeanor conviction. S.C. Code
Ann. §§ 16-17-446(D), 16-17-445(F).
On September 17, 2010,4 at Plaintiff’s request, a state representative sought an opinion
from the state attorney general on the legality of certain political phone calls. (ECF No. 14-2 at
10.) Specifically, the state representative inquired whether under South Carolina law it was
acceptable to make political calls to answering machines but not to live answers. (Id.) The
representative also asked whether it was legal for organizations such as Survey USA to conduct
automated survey calls that require a recipient’s response via phone key. (Id.)
The state attorney general responded in an official opinion on September 22, 2010. (ECF
No. 14-2 at 11–12; S.C. Att’y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174).) In that
opinion, the state attorney general stated his belief that it was legal for a person to make political
phone calls with a recorded telephone message delivered to an answering machine and not a live
person.

(ECF No. 14-2 at 11–12; S.C. Att’y. Gen. Op. dated Sept. 22, 2010 (2010 WL

3896174).) The state attorney general further opined that the purpose of § 16-17-446 was to
“prohibit the unwarranted invasion by automated dialing devices in order to promote the
advocacy of a ‘product’ including a particular candidate.” (ECF No. 14-2 at 11–12; S.C. Att’y.

Although the letter is dated September 17, 2009, Plaintiff alleges it was written September 17,
2010. (Compare ECF No. 14-2 at 10 to ECF No. 14-1 at 5.) The record does not resolve this
conflict; however, this fact is not material to the issues of the case.

4

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Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174).) As such, the state attorney general
concluded that organizations such as Survey USA were allowed to conduct political ADADs that
require the recipient’s responses via phone key. (ECF No. 14-2 at 11–12; S.C. Att’y. Gen. Op.
dated Sept. 22, 2010 (2010 WL 3896174).) However, the state attorney general cautioned that
those political ADADs could not advocate for a particular political candidate but could instead
obtain a simple snapshot opinion of a voter. (ECF No. 14-2 at 11–12; S.C. Att’y. Gen. Op. dated
Sept. 22, 2010 (2010 WL 3896174).) Thus, the state attorney general interpreted § 16-17-446 to
allow political ADADS that were either delivered to an answering machine or that obtained a
voter’s opinion by phone key.
In late September 2010, State Representative Anne Peterson Hutto formally requested
that Defendant SLED investigate robocalls made in reference to her electoral race. (ECF No. 173 at 2–3.) Representative Hutto asked that Defendant SLED investigate because her electoral
opponent was an assistant solicitor and as a result, Representative Hutto felt local law
enforcement would have a conflict of interest in handling the matter. (Id. at 2.) Defendant
SLED’s investigation revealed that political robocalls had been made in reference to the races of
six female Democratic candidates for the South Carolina House of Representatives (collectively
referred to as “the female Democratic candidates” or “the FDCs”). (ECF No. 17-1 at 2; ECF No.
17-2 at 2.) In early October, Defendant SLED received voluntary statements from each of the
female Democratic candidates. (ECF No. 17-4 at 2–9.) The FDCs complained that robocalls
were made, without their authorization or consent, which the FDCs believed were intended to
adversely impact their campaigns. (Id.)
Defendant LaRosa asserted in a sworn affidavit that Representative Hutto, one of the
female Democratic candidates, provided Defendant LaRosa an electronic recording of one of the

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ADAD calls made within her district.5 (ECF No. 17-2 at 2.) Defendant LaRosa averred that the
recorded robocall made to Representative Hutto’s constituent stated the following:
Please hold for a one-question survey.
As you may have heard, Speaker of the House Nancy Pelosi is coming to
South Carolina.
Do you think incumbent Democrat Anne Peterson Hutto should invite her
fellow Democrat Nancy Pelosi to come campaign for her?
Press 1 if you think incumbent Democrat Anne Peterson Hutto should invite
her fellow Democrat Nancy Pelosi to come and campaign with her.
Press 2 if you think incumbent Democrat Anne Peterson Hutto should not
invite her fellow Democrat Nancy Pelosi to come and campaign with her?
(Id. at 2–3.)
Defendant SLED learned through its investigation that Plaintiff was responsible for the
calls that were placed. (ECF No. 17-1 at 3.) Specifically, Defendant SLED determined that
Plaintiff was the president for the entity that paid the phone bills for the phone number from
which the calls were made. (ECF No. 17-2 at 3.) Defendant SLED presented arrest warrants for
Plaintiff to a state magistrate judge who signed the warrants on November 1, 2010. (ECF No.
17-1 at 4.) On November 3, 2010, Plaintiff turned himself in at a detention center where he was
booked and released on his own recognizance. (Id. at 4.) At some point, Plaintiff’s criminal
matter was transferred to the Solicitor’s Office for the First Judicial Circuit of South Carolina.
(ECF No. 17-2 at 4.) On May 1, 2012, the First Circuit Solicitor’s Office dismissed the warrants
against Plaintiff. (ECF No. 17-7 at 2.)

In a written voluntary statement that was sworn and witnessed, Representative Hutto stated that
she obtained an audio recording of the robocall from one of her constituents on September 24,
2010. (ECF No. 17-4 at 2.)

5

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On October 31, 2012, Plaintiff filed this action in South Carolina state court stating under
42 U.S.C. § 1983 that Defendants violated the First Amendment on its face and as applied to
Plaintiff. (ECF No. 1-2; ECF No. 14-1 at 14–16.) Plaintiff requested declaratory relief and
requested that Defendants be enjoined from enforcing the state ADAD law’s restrictions on
political robocalls. (ECF No. 1-2 at 18–19.) Plaintiff further claimed that he was falsely
imprisoned and maliciously prosecuted in violation of state law. (Id. at 19–21.) Defendants
removed this action to federal court on March 22, 2013. (ECF No. 1.)
On November 14, 2013, Plaintiff moved for a preliminary injunction, or in the
alternative, for partial summary judgment. (ECF No. 14.) On December 6, 2013, Defendants
responded to Plaintiff’s motion, (ECF No. 18), and also moved for summary judgment (ECF No.
17). On December 16, 2013, Plaintiff replied in support of his motion. (ECF No. 19.) On
December 21, 2013, Plaintiff filed a response to Defendants’ motion for summary judgment.
(ECF No. 20.) On January 10, 2014, Defendants replied in support of their motion for summary
judgment. (ECF No. 23.) On March 30, 2014, Plaintiff moved to expedite the court’s decision.
(ECF No. 25.)
LEGAL STANDARDS
Preliminary Injunction
A preliminary injunction is an extraordinary remedy and a plaintiff seeking such remedy
carries a substantial burden. See Munaf v. Geren, 553 U.S. 674, 689–90 (2008). In order for a
court to grant a preliminary injunction, a movant must show (1) he will likely succeed on the
merits, (2) he will suffer irreparable harm in the absence of the injunction; (3) the balance of
equities weighs in his favor; and (4) such relief would be in the public interest. Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The Fourth Circuit has recognized that

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“in the context of an alleged violation of First Amendment rights, a plaintiff’s claimed
irreparable harm is inseparably linked to the likelihood of success on the merits of plaintiff’s
First Amendment claim.” Centro Tepeyac v. Montgomery County, 722 F.3d 184, 190 (4th Cir.
2013).

In jointly considering the third and fourth Winter prongs, the Fourth Circuit has

established that a state is not harmed by a preliminary injunction where the enforcement of a
statute would likely be found unconstitutional. Id. at 191. The Circuit Court has also instructed
that “upholding constitutional rights surely serves the public interest.”
Therefore, in the First Amendment context, the first Winter factor of likelihood of
success substantially predominates the preliminary injunction analysis.

Generally, where a

movant demonstrates that he will likely be successful on his constitutional claim, courts will
grant the injunction.
Summary Judgment
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show 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 fact is “material” if proof of its existence or non-existence would
affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477
U.S. 242, 248–49 (1986). A genuine question of material fact exists where, after reviewing the
record as a whole, the court finds that a reasonable jury could return a verdict for the nonmoving
party. Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, the court must construe all inferences and
ambiguities against the movant and in favor of the non-moving party. See United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).

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The party seeking summary judgment shoulders the initial burden of demonstrating to the
district court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving
party, to survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Rather, the non-moving party must demonstrate that specific, material facts exist
which give rise to a genuine issue. See id. at 324. Under this standard, the existence of a mere
scintilla of evidence in support of the petitioner’s position is insufficient to withstand the
summary judgment motion. See Anderson, 477 U.S. at 252. Likewise, conclusory allegations or
denials, without more, are insufficient to preclude the granting of the summary judgment motion.
See Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
DISCUSSION
Section 1983: First Amendment Claim
Plaintiff’s motion for a preliminary injunction requests that the court enjoin Defendants
from enforcing § 16-17-446 based on Plaintiff’s claim that the statute violates Plaintiff’s First
Amendment rights. (ECF No. 14-1 at 1.) Plaintiff also moves in the alternative for partial
summary judgment whereby the court would find the statute unconstitutional and issue a
permanent injunction.

(Id. at 1–2.)

Quite expectedly, Defendants’ motion for summary

judgment focuses primarily on the contention that the state statutory provisions regulating
political robocalls do not violate the First Amendment. (See ECF No. 17-1 at 4–5.) Given the
predominance of this claim throughout the various motions, the court will address it first.

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A. First Amendment Claim
1. Content-Based Restriction
A central tenet of First Amendment jurisprudence is that the government may not restrict
speech on the basis of its content. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)
(“[A]bove all else, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.”). Where a statute
places a differential burden on speech due to its content, it must withstand a strict scrutiny
analysis by the court. Maryland v. Universal Elections, Inc., 729 F.3d 370, 376 (4th Cir. 2013).
“In contrast, regulations that are unrelated to the content of speech are subject to an intermediate
level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas
or viewpoints from the public dialogue.” Id. (internal quotations and citation omitted).
i. Content-Based or Content-Neutral Distinction
The Supreme Court has stated the following with respect to the content-based or contentneutral inquiry:
As a general rule, laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed are content
based. By contrast, laws that confer benefits or impose burdens on speech
without reference to the ideas or views expressed are in most instances
content neutral.
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). In determining whether a restriction
of speech is content-based or content-neutral, the Fourth Circuit has adopted a pragmatic
approach. Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013). “The
principal inquiry in determining content neutrality in speech cases…is whether the government
has adopted a regulation of speech because of disagreement with the message it conveys.”
Brown v. Town of Cary, 706 F.3d 294, 301 (4th Cir. 2013). If the government has adopted

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legislation in an effort to censor a particular subject matter over others, strict scrutiny applies.
Clatterbuck, 708 F.3d at 556.
Plaintiff contends that the code restrictions, in conjunction with the state attorney
general’s interpretation of the provisions, are content-based because the government must look at
the content of the speaker’s message to determine whether the law has been violated. (ECF No.
14-1 at 13.) Essentially, Plaintiff argues that § 16-17-446 is content-based because it restricts
calls on the basis of whether their subject matter is commercial or political. (See id. at 13.)
Defendants cite to Brown v. Town of Cary, to argue that the Fourth Circuit’s analysis focuses on
the purpose behind the regulation’s adoption and not whether the government must look to the
content of the speaker’s message. (ECF No. 17-1 at 6–7.)
Indeed, the Fourth Circuit has declined to adopt an analysis, as some circuit courts have,
which focuses on whether the government must look to the content of the speaker’s message.
See Brown v. Town of Cary, 706 F.3d at 302 (“In our view…such an approach imputes a
censorial purpose to every content distinction, and thereby applies the highest judicial scrutiny to
laws that do not always imperil the preeminent First Amendment values that such scrutiny serves
to safeguard.”). However, the court understands the Fourth Circuit’s guidance to indicate that a
law, which distinguishes on the basis of content, will be classified as content-based unless the
state can show that the law was adopted without a censorial purpose. See Clatterbuck, 708 F.3d
at 556; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642–43 (1994) (“[T]he mere
assertion of a content-neutral purpose [is not] enough to save a law which, on its face,
discriminates based on content.”).

While Defendants articulate the correct standard which

emphasizes the purpose behind the regulation’s adoption, (ECF No. 17-1 at 6–7), Defendants

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have not presented any evidence of the legislature’s intent in adopting § 16-17-446’s ban on
political robocalls.
Plaintiff references an opinion of the state attorney general, which constitutes the state
attorney general’s interpretation of the statute. (See ECF No. 14-1 at 5.) Plaintiff does so for
reasons unrelated to the court’s inquiry into the legislature’s intent in implementing § 16-17-446.
Nonetheless, the court finds that the state attorney general’s opinion could be relevant to its
inquiry because “[a]lthough attorney general opinions are not precedential, they are afforded
great weight in South Carolina, particularly in matters of statutory construction.” Mun. Ass’n of
S.C. v. Omaha Prop. & Cas. Ins. Co., 2007 WL 7945179 at *6 (D.S.C. Apr. 9, 2007) (internal
quotation marks and citation omitted). The state legislature is presumed to have notice of the
state attorney general’s opinion especially since a state representative requested the opinion. See
Napa Valley Educator’s Ass’n v. Napa Valley Unified Sch. Dist., 194 Cal. App. 3d 243, 251
(1987) (“In the absence of controlling authority, [attorney general] opinions are persuasive since
the legislature is presumed to be cognizant of that construction of the statute.”) (internal
quotation marks and citation omitted); see also Browning-Ferris, Inc. v. Virginia, 300 S.E.2d
603, 605–06 (Va. 1983) (“The legislature is presumed to have had knowledge of the Attorney
General’s interpretation of the statutes, and its failure to make corrective amendments evinces
legislative acquiescence in the Attorney General’s view.”).
The state attorney general interprets § 16-17-446 to allow political robocalls so long as
they are either delivered to an answering machine or they conduct a survey, which requires a
response via phone key and which does not promote a particular candidate. (ECF No. 14-2 at
11–12; S.C. Att’y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174).) The state attorney
general stated that the legislative purpose of § 16-17-446 was to prevent the use of robocalls,

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which promoted a particular candidate. (Id.) However, from this meager explanation, the court
cannot determine the full intent of the legislature in banning political robocalls, the central
question for resolving whether the restriction is content-based. See Clatterbuck, 708 F.3d at 555
(“In this inquiry, the government’s purpose is the controlling consideration.”) (internal quotation
marks and citation omitted).
Having no evidence from either party regarding the legislative intent, the court has
conducted its own inquiry into the legislative history of § 16-17-446’s prohibition on political
robocalls. The court was unable to locate any indication of the legislature’s purpose for the
restriction.

In the absence of any evidence regarding this issue, the court believes it is

constrained to find upon the parties’ cross-motions for summary judgment that Plaintiff has met
his burden in demonstrating that § 16-17-446 restricts speech on the basis of content.
The court further concludes that Defendants have failed to negate the content-based
classification due to their inability to demonstrate that the state enacted the legislation for a noncensorial purpose. The court finds it appropriate to place the burden on the state to establish a
content-neutral legislative intent because the state entity is the party best positioned to obtain
such evidence.

Moreover, the court is concerned that placing such burden on the party

challenging the statute would create a disincentive for the legislature to create and preserve its
legislative history. In that alternative universe, any content-based statute would be upheld where
no evidence of legislative intent could be found. Because the court views such a result contrary
to the law’s general disfavor of content-based regulations, see R.A.V. v. City of St. Paul, 505 U.S.
377, 382 (1992), the court construes the Fourth Circuit’s guidance to require the state to factually
support its claim of a non-censorial purpose. See also Clatterbuck, 708 F.3d at 559 (“Indeed, in
the cases…proffered by the City to support content-neutrality, the government’s justification for

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the regulation was established in the record, and the court was able to weigh evidence supporting
that justification.”).
ii. Strict Scrutiny
Having concluded that § 16-17-446 is a content-based restriction, the court evaluates the
statute under strict scrutiny. To survive strict scrutiny, a statute (1) must promote a compelling
governmental interest and (2) must be narrowly tailored to support that interest. United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). Where “a less restrictive alternative would
serve the Government’s purpose, the legislature must use that alternative.” Id. Defendants state
that the government’s purpose in banning political robocalls is to protect residential privacy.
(ECF No. 17-1 at 11.) Robocalls, Defendants contend, are very intrusive and do not allow
listeners to interact with the callers to prevent future calls. (Id. at 11–12.) The court is certainly
sympathetic to that concern and notes that several courts have upheld the constitutionality of
robocall restrictive statutes under the intermediate scrutiny framework. See, e.g., Maryland v.
Universal Elections, 729 F.3d at 376–77 (“[T]he Supreme Court has long recognized that
preserving the sanctity of the home, the one retreat to which men and women can repair to
escape from the tribulations of their daily pursuits, is surely an important value.”) (internal
quotation marks and citation omitted); Van Bergen v. Minnesota, 59 F.3d 1541, 1555 (8th Cir.
1995).
Nevertheless, and quite significantly, Defendants state “[t]he government’s interest is in
eliminating virtually all robocalls, not just those that express particular points of view, or only
those that express commercial messages, or only those that express political messages.” (ECF
No. 23 at 4.) Given that interest, the court finds the statute is fatal for its underinclusiveness and
its singling out of commercial and political speech. “A law is underinclusive…and thus not

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narrowly tailored, when it discriminates against some speakers but not others without a
legitimate ‘neutral justification’ for doing so.” Nat’l Fed’n of the Blind v. F.T.C., 420 F.3d 331,
345 (4th Cir. 2005).
Defendants argue that § 16-17-446 is not unlawfully underinclusive because it does not
fit the criteria identified by the Fourth Circuit in National Federation of the Blind of what
constitutes an impermissible underinclusive restriction. (ECF No. 23 at 4–5.) Those categories
are (1) “where the law represents an attempt by the government to give one side of a public
debate an advantage over another; (2) where the regulation is so broad or narrow in scope that it
undermines the likelihood of a genuine governmental interest; and (3) where the
underinclusiveness is so severe that it raises serious doubts about whether the government is
actually serving the interests it invokes.” Nat’l Fed’n of the Blind, 420 F.3d at 346. On this
record, the court cannot conclude that the restrictions at issue in this case do not fall within any
of the categories.

Without any evidence regarding the legislature’s purpose for restricting

robocalls on the basis of their commercial or political content, the court finds the statute’s
differential treatment of speech impermissible.6
Accordingly, § 16-17-446’s content-based restriction does not withstand strict scrutiny
and therefore violates the First Amendment. For that reason, the court grants Plaintiff’s motion

6
The court notes that while several courts have upheld restrictions on robocalls, those cases
involved statutes that prohibited all types of robocalls with allowances for some exceptions. See
Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995) (upholding a Minnesota robocall statute
which applied to all callers regardless of the content of their messages); Bland v. Fessler, 88 F.3d
729 (9th Cir. 1996) (upholding a California utilities statute regulating ADADs which applied
broadly to all users of ADADs); Maryland v. Universal Elections, Inc., 729 F.3d 370 (4th Cir.
2013) (finding the identification requirement provisions of the Telephone Consumer Protection
Act (“TCPA”) constitutional in part because the disclosure requirement applied regardless of the
content of the message). In contrast, the statute at issue in the instant case singles out political
and commercial robocalls as the only type of calls that are generally prohibited.
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for partial summary judgment.7 The court proceeds to briefly address Plaintiff’s remaining First
Amendment arguments.
2. Compulsory Speech
Plaintiff argues that the requirements for ADAD calls that are excepted under the statute
(calls that are based on consent or a previous relationship) generate compulsory speech. (ECF
No. 14-1 at 16–19.) Section 16-17-446 requires that the caller who falls into the exception
identify the originating party, the purpose of the call, and the nature of the call. See S.C. Code §
16-17-446(C)(1). Plaintiff argues the disclosure requirements are political in nature and violates
his constitutional right not to speak. (ECF No. 14-1 at 18.)
The First Amendment protects the right to both speak freely and to refrain from speaking
at all. Wooley v. Maynard, 430 U.S. 705, 714 (1977). However, in Maryland v. Universal
Elections, Inc., the Fourth Circuit upheld under intermediate scrutiny the Telephone Consumer
Protection Act’s (“TCPA”) requirements that an ADAD identify the entity sponsoring the call
and the entity’s phone number because it was a content-neutral provision that furthered
important governmental interests. Maryland v. Universal Elections, 729 F.3d at 376–77. The
Fourth Circuit ruling was predicated largely on the fact that the disclosure applied to all ADADs
regardless of content. Id. at 376. Similarly, if the disclosure provision in the instant case were
applied without regard to content, the court could apply a similar analysis as that which was
applied in Maryland v. Universal Elections and find the provision constitutional. However, in
the instant case, the court finds § 16-17-446’s requirements impermissible because they are
triggered on the basis of the speech’s content. For that limited reason, the court finds § 16-17446 an impermissible compulsion of speech.

Plaintiff’s motion, in the alternative, for a preliminary injunction is thereby rendered moot.

7

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3. Vagueness
Lastly, Plaintiff contends that several phrases within § 16-17-446 are unconstitutionally
vague such that they do not provide sufficient notice of the conduct prohibited and encourage
arbitrary enforcement. (ECF No. 14-1 at 19–24.) The phrases at issue are (1) “calls of a political
nature”; (2) “including, but not limited to, calls relating to political campaigns”; (3) “in response
to a person with whom the telephone solicitor has an existing business relationship or has had a
previous business relationship”; (4) “the identity of the originating party”; (5) “the endorsement
of a candidate”; and (6) “nature of the call”. (Id.) Defendant responds that Plaintiff lacks
standing to challenge the statute on the basis of vagueness because his conduct falls squarely
within the core of the statute’s restrictions. (ECF No. 17-1 at 14–15.)
A statute is vague where it (1) “fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes or even
encourages arbitrary and discriminatory enforcement.” Brown v. Town of Cary, 706 F.3d at
305–06.

The vagueness doctrine does not require the legislature to define terms with

“mathematical certainty” but instead commands that the statute provide sufficient guidance for
an ordinary citizen to know what it means. Id. at 306.
While at first glance the court is not troubled that a person of ordinary intelligence would
understand § 16-17-446, a substantive vagueness analysis is not warranted given the issue of
standing raised by Defendants.

“One to whose conduct a statute clearly applies may not

successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974). In this case,
Plaintiff’s calls regarding the political campaigns of the FDCs were clearly of a political nature
and related to a political campaign. Plaintiff has not identified any previous relationship he had
with those who were called, so the court presumes that no such relationship existed. The entity

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originating the call was presumably Plaintiff or some organization of the Republican Party. The
call did not endorse a political candidate, but instead, the nature of the call was to conduct a
political question survey. Because the provisions of the statute are clear as applied to Plaintiff’s
conduct, the court finds Plaintiff has no standing to challenge § 16-17-446’s constitutionality on
vagueness grounds.

See Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (“[A]ny such

uncertainty has little relevance here, where [the challenger’s] conduct falls squarely within the
‘hard core’ of the statute’s proscriptions[.]”).
B. Qualified Immunity
While at this posture, Plaintiff solely seeks declaratory and injunctive relief regarding the
constitutionality of the state robocall restrictions, Defendants address in their motion for
summary judgment the full merits of Plaintiff’s § 1983 action. Thus, in addition to the requests
for declaratory and injunctive relief, Defendants also respond to any request for damages
Plaintiff may be seeking as a result of the alleged constitutional violation. (See ECF No. 17-1 at
16–20; see also ECF No. 1-2 at 18.) Defendants LaRosa and Lloyd contend that they are entitled
to qualified immunity from damages. (ECF No. 17-1 at 16–20.)
The doctrine of qualified immunity shields government officials performing discretionary
functions from liability for civil damages where “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The steps in determining whether officials are
entitled to qualified immunity are: (1) an inquiry into whether the plaintiff has alleged a
deprivation of a constitutional right and (2) whether that right was clearly established at the time
of the alleged violation. Rogers v. Pendleton, 249 F.3d 279, 286 (4th Cir. 2001). Under the facts
as established for the purposes of summary judgment, Plaintiff has alleged a deprivation of a

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constitutional right. However, that right was not clearly established because no other state or
federal court opinion had at the time of Plaintiff’s arrest addressed the constitutionality of § 1617-446. Moreover, Defendants’ arrest of Plaintiff was arguably consistent with the state attorney
general’s interpretation of the statute (which did not address any constitutional question) because
Plaintiff did not comply with the disclosure requirements of the statute.
For these reasons, Defendants LaRosa and Lloyd are entitled to qualified immunity for
any damages alleged by Plaintiff with regard to Plaintiff’s First Amendment claim under § 1983.
State Law Claims: False Imprisonment and Malicious Prosecution
In their motion for summary judgment, Defendants argue that Plaintiff’s state law claims
of false imprisonment and malicious prosecution are without merit because Defendants had
probable cause for Plaintiff’s arrest. (ECF No. 17-1 at 20–23.) To establish the claim of false
imprisonment, Plaintiff must show that Defendants intentionally restrained Plaintiff unlawfully.
Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 651 (S.C. 2006). To establish the claim of malicious
prosecution, Plaintiff must establish that Defendants instituted judicial proceedings against him
with malice and without probable cause. Id. at 648. Moreover, Plaintiff must show that the
proceedings were terminated in his favor and that they resulted in injury or damage. Id.
The court agrees with Defendants’ contention that the existence of probable cause bars
Plaintiff’s state law claims. Plaintiff argues at length that Defendants did not possess probable
cause to arrest him. (See ECF No. 20 at 44–49.) However, the court finds the issue of probable
cause straightforward. Probable cause is defined as “a good faith belief that a person is guilty of
a crime when this belief rests on such grounds as would induce an ordinarily prudent and
cautious man, under the circumstances, to believe likewise.” Jones v. City of Columbia, 389
S.E.2d 662, 663 (S.C. 1990).

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Defendants have demonstrated that the FDCs requested an investigation, which was
appropriately conducted regarding political robocalls made within the FDCs’ districts.
Defendants’ investigation revealed that Plaintiff either violated § 16-17-446’s blanketed
prohibition on political robocalls or that, even within an exception to the statute or within the
state attorney general’s guidance, Plaintiff failed to make the necessary identifying disclosures.
For any of those reasons, Defendants possessed probable cause to arrest Plaintiff. Therefore, the
court finds that Plaintiff’s state law claims fail as a matter of law and that Defendants are entitled
to summary judgment for these claims.
CONCLUSION
For the foregoing reasons, the court GRANTS Plaintiff’s motion for partial summary
judgment (ECF No. 14), declaring S.C. Code § 16-17-446’s restrictions on political robocalls
unconstitutional and issuing a permanent injunction against its enforcement in that regard. 8 The
court therefore DENIES AS MOOT Plaintiff’s motion, in the alternative, for a preliminary
injunction (Id.) and Plaintiff’s motion to expedite the court’s decision (ECF No. 25). The court
GRANTS IN PART Defendants’ motion for summary judgment with respect to Plaintiff’s state
law causes of action as well as Plaintiff’s individual damage claims under § 1983 against
Defendants LaRosa and Lloyd. (ECF No. 17). The court DENIES IN PART Defendants’
motion for summary judgment regarding Plaintiff’s First Amendment claim for declaratory and
injunctive relief. (Id.)

8
The court’s ruling applies to § 16-17-446’s prohibition of political robocalls as such was the
only issue before the court. The court has not addressed the statute’s constitutionality as it
relates to the ban of commercial robocalls, and the court recognizes that the commercial speech
analysis would involve distinct considerations. See Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 562–63 (1980) (“The Constitution therefore accords lesser
protection to commercial speech than to other constitutionally guaranteed expression.”).
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IT IS SO ORDERED.

United States District Court Judge

June 10, 2014
Columbia, South Carolina

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