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Litigation News

Litigation News | 2020

Standing Strong to Challenge Unconstitutional Statute

Mark Anthony Flores


  • Good pleading and solid arguments allow company to challenge a state robocall statute.
  • A federal appellate court curbed a state legislature’s attempt to limit robocalls as violative of the First Amendment.
Standing Strong to Challenge Unconstitutional Statute
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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.

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.

The political consultant appealed. The U.S. Court of Appeals for the Ninth Circuit easily held Montana’s Robocall Statute sought to regulate speech based on content as it distinguished treatment of the speech “based on the topic discussed, viewpoint or idea expressed, or, more subtly, the function or purpose of the speech.” Because of this finding, the appellate court applied strict scrutiny to its review of the Robocall Statute, requiring Montana to “demonstrate that the law is justified by a compelling interest and is narrowly tailored to further that interest.”

“The Court hit it right on the head with this opinion because if you choose to regulate these categories of expression, you are deciding to prefer speech of a certain content over the other,” says Jason P. Kairalla, Miami, FL, cochair of the Section of Litigation’s Appellate Practice Committee.

The appellate court acknowledged the state’s interest in protecting its citizens’ privacy. That said, the appellate court also held the specific restrictions listed in the statute did not cover enough types of speech to make it sufficiently tailored to address that concern. While the government is not required “to address all aspects of a problem in one fell swoop, an underinclusive restriction can raise doubts about whether the government is in fact pursuing the interest in invokes, rather than disfavoring a particular speaker or viewpoint,” the appellate court stated.

Taking a dual-argument approach that the restriction is (1) underinclusive and (2) disfavors a particular speaker or viewpoint is a solid plan of attacking statutes as not narrowly tailored to address the issue, Kairalla notes. “This is a frequent way in which we argue cases in this context,” he adds. “It is a strong way to argue these issues because the court does not need to buy both arguments to prevail.”

Artful Pleading and Standing to Sue

The appellate court also addressed Montana’s argument that the political consulting firm lacked standing to challenge the constitutionality of the Robocall Statute. The state argued that the consultant lacked sufficient standing because it was merely the provider of robocall services to non-parties. The consulting firm, however, pled in its complaint that it engaged in political consulting using polling obtained in the automated telephone calls. That was sufficient, according to the appellate court, to establish that the consulting firm sought to “vindicate its own First Amendment rights, not the rights of its clients.”

Litigants “have to make the allegations that show that the plaintiff has a personal stake regarding standing on their own behalf,” says Tracy A. DiFillippo, Reno, NV, cochair of the Section’s Pretrial Practice & Discovery Committee. “If you allege facts that relate to the cause of action and the injury is traceable to your specific plaintiff, you should be able to overcome the dispositive motion,” she adds.

The key in establishing standing is pleading sufficient factual allegations to provide notice of the claim and your client’s right to bring the action, DiFillippo notes. “When I am looking at standing and it could be questionable, I know I must put enough factual allegations in there to raise an issue of fact as to standing and avoid a motion to dismiss,” says DiFillippo.

Planning a Constitutional Challenge to a Statute

Both DiFillippo and Kairalla believe the case provides a good example of how to bring a challenge to a statute at both the pleading and argument stages. And only after the political consultant made the factual allegations necessary to show a personal injury was it able to make the successful two-pronged attack on the statute.

Engaging intelligent and creative attorneys is key to ensuring your client can make this showing, Kairalla advises. “First Amendment lawyers would spot issues like these right away and help plaintiff’s attorneys to emphasize things like standing and content-based regulation,” he adds.