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On Wednesday, a federal judge ruled (PDF) that Arkansas could not prohibit companies from making political robocalls to residences.
The calls, he ruled, are protected by the First Amendment despite Arkansas’ Secretary of State arguing that forbidding such calls protect citizens’ privacy and safety.
According to the Wall Street Journal, the lawsuit was filed by a Virginia-based communications company called Conquest Communications, whose clients hired it to automatically call residents in Arkansas and ask them to participate in surveys that urge folks to vote.
The robocalls also included “advocacy calls and a variety of other calls made in connection with political campaigns.”
Thirty-five years ago, Arkansas enacted a law that prohibited automatic pre-recorded voice calling for the purposes of “soliciting information, gathering data, or for any other purpose in connection with a political campaign…” as well as standard prohibitions on selling goods or services via robocall.
The Federal Trade Commission maintains a Do Not Call registry from which political calls are exempt, and US law forbidding robocalls exempts those that are not for a commercial purpose.
The judge in this case examined Arkansas’ law against political robocalls as “a content-based restriction on speech,” writing that the state had to prove that those restrictions served “a compelling state interest” and that they were “narrowly tailored to serve that interest.”
Arkansas’ Attorney General argued that banning political robocalls protected citizens’ right to privacy and kept them from unwanted intrusions in their homes.
The state’s lawyer also argued that forbidding robocalls prevented “the seizure of phone lines, which could interfere with emergency calls being placed or received.”
According to the judge’s order, Arkansas’ defense did “not survive strict scrutiny” because it too narrowly targeted political robocalls. “The statute restricted two types of automated calls—consumer and political—but permitted unlimited proliferation of other types, so the statute was underinclusive,” the judge’s order ruled. He added that if political and consumer robocalls were a danger to society because they could interfere with emergency phone lines, why weren’t charity-initiated robocalls or informational robocalls—to inform residents of a town hall meeting, for example—also as great of a danger?
“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 judge concluded.
Regulators have long sought to restrict the nearly-universally-hated practice of robocalling, but putting the kibosh on the practice has been easier said than done.
The FTC has frequently held hackathons to find better ways to stop robocalls from reaching recipients.
Earlier this month, senators asked the mobile carrier association CTIA to do more to stop robocalls from harassing cellphone users.
And just this week, AT&T said it would “lead an industry strike force” to limit the nuisances.
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