April 07, 2020 Top Story

Standing Strong to Challenge an Unconstitutional Statute

Good pleading and solid arguments allow company to challenge a state robocall statute

By Mark A. Flores

A federal appellate court curbed a state legislature’s attempt to limit robocalls as violative of the First Amendment following a successful challenge to the statute. Federal and state robocall statutes have previously placed constitutionally-valid time, place, and manner restrictions on annoying automated calls.

A federal appellate court curbed a state legislature's attempts to limit robocalls

A federal appellate court curbed a state legislature's attempts to limit robocalls

iStockphoto by Getty Images

But Montana’s Robocall Statute, Montana Code 45-8-216, went one step further by placing content-based restrictions on calls related to the sale of goods and services and the promotion of political campaigns. As a result, the appellate court held the restriction content-based before finding it violated the First Amendment. The case provides a good example of how to challenge a statute at both the pleading and argument stages, say ABA Section of Litigation leaders.

Narrow Tailoring to Protect Privacy Interests

In Victory Processing, LLC v. Fox, a Michigan provider of political consulting and data gathering services brought suit in Montana District Court alleging that the Robocall Statute chilled the consultant’s speech by limiting its ability to communicate with Montana voters. The district court granted summary judgment to the state, holding that although the ban was content-based, it was narrowly tailored to address the state’s compelling interest in protecting residential privacy and tranquility.

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