Decided: August 6, 2015
The Fourth Circuit held that under the content-neutrality framework articulated in Reed v. Town of Gilbert, South Carolina’s anti-robocall statute was a content-based regulation that did not survive strict scrutiny, and was therefore deemed unconstitutional. The Court affirmed the district court’s judgment, except for its compelled speech claim, which was vacated and remanded with instructions to dismiss.
The South Carolina General Assembly, in 1991, enacted a “robocall” statute, which regulates automated telephone calls that deliver recorded messages. The statute has different restrictions for robocalls, depending on whether they are (1) unsolicited and (2) made for consumer, political, or other purposes. All qualifying robocalls are banned except for three exceptions, which are based on the express or implied consent of the party called.
On September 23, 2010, Plaintiff Robert Cahaly (“Cahaly”), a self-described Republican political consultant, allegedly placed robocalls in six South Carolina house legislative districts. The calls consisted of a one-question survey that did not advocate for a particular candidate. The day before Cahaly made the calls, the Attorney General issued a letter stating that as long as the calls do not advocate a particular candidate, they may be made, even if they are of a political nature. However, Cahaly’s calls were still reported and in November 1, 2010, a state magistrate judge issued six warrants for Cahaly’s arrest. The warrants were dismissed eighteen months later.
The Fourth Circuit found that, according to Reed, South Carolina’s anti-robocall statute is content-based because it makes content distinctions on its face. Therefore, per Reed, the government’s regulatory purpose need not be considered. Content-based regulation is subject to strict scrutiny, where the government must prove “that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” The Court held that the government failed to prove that the anti-robocall statute is narrowly tailored to serve the government interest of protecting residential privacy. As a result, the Court affirmed the district court’s judgment declaring the statute unconstitutional. The Court also agreed with the district court’s ruling that Cahaly lacked standing for his vagueness challenge because the Court found that the statute squarely covered Cahaly’s calls.
The Court, however, did not agree with the district court’s ruling on Cahaly’s compelled-speech challenge. The Court found that Cahaly lacked standing to challenge the disclosure provision as compelled speech because Cahaly did not suffer an “injury in fact,” under the standing requirement of Article III.
Finally, the Court found that there was probable cause for Cahaly’s arrest. A law enforcement officer who obtains an arrest warrant only loses the protection of qualified immunity “where the warrant application is so lacking in indicia of probable cause as to render official believe in its existence unreasonable.” Even if a police officers determination was wrong as a matter of law, the officer may still have probable cause to arrest based on “reasonable mistakes of law.” Consequently, the Court held that the police officers had probable cause to arrest Cahaly.