South Carolinians will be hanging up a lot more now that a federal judge has lifted a state ban on political robocalls, but free speech attorneys say the court made the right decision.
When U.S. District Court Judge Michelle Childs decided earlier this month that the state law criminalizing political robocalls is unconstitutional, she made plenty of campaign groups happy – and they can thank prominent GOP consultant Robert Cahaly for putting the issue before the court.
Cahaly, who has advised Gov. Nikki Haley, House Speaker Bobby Harrell and former Lt. Gov. Ken Ard, challenged the law criminalizing political robocalls as part of his lawsuit against the S.C. Law Enforcement Division, or SLED.
Childs ruled on June 10 in favor of Cahaly’s claim that his First Amendment rights had been violated, declaring that the state statute outlawing certain robocalls was flawed because it targets commercial and political messages without offering a “legitimate ‘neutral justification’ for doing so.’”
“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,” Childs added.
Cahaly’s attorney, Samuel Harms of Greenville, said that while the ruling specifically strikes down restrictions on automated political calls, the issue of whether commercial robocalls are illegal remains up in the air.
That’s because Childs made no finding on the constitutionality of the state’s ban on commercial speech, which would require a different legal analysis and standard than the law against political speech, Harms said.
“A person who wants to use a robocall machine to sell a consumer product, they’re going to have to challenge the constitutionality of that statute,” he added. “The constitutionality of that statute in that area is still very questionable.”
‘Fatal for its underinclusiveness’
Phone records revealed that Cahaly was behind a recorded message that was sent to voters during the 2010 election with the use of an auto dial machine. The call asked voters if they thought incumbent state Rep. Anne Peterson-Hutto “should invite her fellow Democrat Nancy Pelosi to come campaign for her?” They could press 1 to answer yes and 2 for no.
Hutto, a Charleston lawyer who lost the election, requested a SLED probe of the messages, which resulted in Cahaly being arrested on a half-dozen misdemeanor charges of violating the robocall ban.
However, prosecutors dropped the case against Cahaly because they didn’t like their chances of securing a conviction. Assistant solicitor Harrison Bell of Orangeburg told reporters that the statute was “crazy” and poorly written.
The state attorney general later issued an opinion that interpreted the robocall law as only restricting messages that promoted specific political candidates, but not calls that went straight to answering machines or those that conducted political surveys.
Meanwhile, SLED and the co-defendants named in Cahaly’s suit – SLED agent Paul LaRosa, who investigated Cahaly, and former SLED chief Reginald Lloyd – contended that the state was interested in “eliminating virtually all robocalls” because the messages are “intrusive.”
In her ruling, Childs said that she was sympathetic to the cause, but concluded that if the legislature wanted to ban all robocalls it shouldn’t have written a law that “is fatal for its underinclusiveness and its singling out of commercial and political speech.”
‘We all detest these calls’
Cheryl Perkins, a First Amendment attorney and partner at Whetstone, Perkins & Fulda in Columbia, who has no stake in Cahaly’s case, applauded Childs’ opinion, albeit a bit reluctantly.
“We all detest these calls,” she said “but I think the judge did what she had to do based on the language of the statute and the constitution. This is a statute that attempts to criminalize free speech.”
Laura Waring, a constitutional law attorney at Grimball & Cabaniss in Charleston, also agreed with the ruling.
“I think she’s right on the money,” Waring said of Childs. “It [the law] was not narrowly tailored to the need it purported to serve. Even if there were a legislative effort to ban all robocalls, the statute did not serve that end.”
Perkins suggested that lawmakers might revive the law by expanding its scope in a similar way that the federal law has a blanket prohibition on robocalls with a few exceptions, such as public service announcements about emergencies.
She added that the legislature also could possibly overcome Childs’ ruling without rewriting the statute if it can demonstrate that it enacted the ban for a legitimate non-censorial purpose. Childs’ opinion was based, in part, on the fact that the legislative intent behind the law is murky.
“It seems likely the General Assembly will address the issue next legislative session,” said Matt Orr, a spokesman for the S.C. Republican Party. A few weeks before Childs issued her decision, the SCGOP sent out a memo reminding campaigns that political robocalls were illegal.
In the wake of Childs’ ruling, which obviates the memo, Orr said he had “notified campaigns, consultants and elected officials of the court’s decision.” He declined further comment
SLED’s attorneys, Kenneth Woodington and William Davidson of Davidson & Lindemann in Columbia, did not respond to interview requests.
While Childs struck down the ban on political robocalls, she rejected Cahaly’s claims for malicious prosecution and false imprisonment. He’d argued that SLED lacked probable cause to arrest him, but Childs found that investigators had sufficient reason to believe he violated the law.
Follow Phillip Bantz on Twitter @SCLWBantz