March 30, 2020
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A federal judge has ruled that robocalls made on behalf of political candidates are protected by the First Amendment and cannot be outlawed. The decision came in a case in Arkansas, where political robocalls had been illegal for more than 30 years.
On Wednesday, U.S. District Court Judge Leon Holmes ruled that banning political robocalls amounts to an infringement of free speech protections and also constitutes prior restraint of speech. Political campaigns have been using robocalls for decades, and some states have sought to ban them, arguing that they are intrusive and violate recipients’ privacy. In the Arkansas case, the state attorney general put forward both of these arguments, and also argued that the calls can tie up phone lines, making them unusable in an emergency.
Holmes said in his decision that there was no evidence that political robocalls prevent emergency communications, and also said that the Arkansas statute should have banned all robocalls, not just commercial and political ones.
Robocalls are a fact of life for anyone with a phone
“If the interests of privacy and safety warrant restriction of automated calls made for a commercial purpose or in connection with a political campaign, they also warrant restriction of other types of automated calls. The statute is under inclusive,” Holmes said in his decision.
“Banning calls made through an automated telephone system in connection with a political campaign cannot be justified by saying that the ban is needed to residential privacy and public safety when no limit is placed on other types of political calls that also may intrude on residential privacy or seize telephone lines.”
The Arkansas case involved a company called Conquest Communications Group, which makes robocalls on behalf of political campaigns.
Robocalls are a fact of life for anyone with a phone, and while many of them are legitimate, a sizable fraction are related to phone fraud scams. And it often can be difficult for people to tell the difference between a scam call and a legitimate one. New data released this week by Pindrop Labs shows that political phone fraud scams account for six percent of all robocalls. These are not the legitimate campaign calls, but are constructed to sound like them and are used to solicit money and people’s personal details.
Holmes’ decision makes it clear that the robocalls made by legitimate political campaigns are protected by the First Amendment.
“The statute at issue here imposes a content-based restriction on speech; it is not one of the rare cases that survives strict scrutiny. The state has failed to prove that the statute at issue advances a compelling state interest and is narrowly tailored to serve that interest,” Holmes wrote.