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Arkansas Court Finds First Amendment Protections for Political Calls
On July 27, 2016, a district court in the Eastern District of Arkansas stated that it was unconstitutional to restrict the use of automated or prerecorded telephone calls for political campaign purposes because any regulation doing so is “a content-based restriction that does not survive strict scrutiny.”   
 
In the case Gresham v. Rutledge, plaintiffs, political consultants Conquest Communications Group and Victor Gresham, brought an action against the Attorney General of the State of Arkansas, alleging Arkansas Code Annotated § 5-63-204(a)(1), a state statute banning the use of automated phone systems for political campaigns,  was unconstitutional.  The statute prevented the consultants from making automated and prerecorded calls in Arkansas on behalf of their political clients, thus chilling free speech.    
 
The Court agreed with Gresham and Conquest stating that the statute in fact did restrict political speech which is protected by the First Amendment. Because the statute is a content-based restriction on speech, it is subject to review under the strict scrutiny standard. In order to withstand strict scrutiny, the State had to prove that the statute advances a compelling state interest and further, that it is narrowly tailored to serve that interest.   
 
The State centered their argument on Arkansas’ compelling interest in furthering residential privacy and public safety.   While the Court noted the importance of residential privacy and public safety, it did not find it to be compelling. Regardless, the Court found the statute was not sufficiently narrowly tailored to survive the strict scrutiny test.  During its analysis, the Court noted that the statute was too narrow in that it only restricted automated or prerecorded calls in connection with a political campaign or for commercial purposes, without any explanation as to why automated calls outside of those categories did not violate residential privacy.  Additionally, the Court found that there were less restrictive alternatives to achieve the State’s interests in residential privacy, as evidenced by other states’ use of time-of-day restrictions, do-not-call lists, prohibitions on calling emergency lines, and disconnection requirements.

The case is Gresham v. Rutledge, Case No. 16-cv-241, District Court for the Eastern District of Arkansas.

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