6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`GREENVILLE DIVISION
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`Robert C. Cahaly,
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`v.
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`Plaintiff,
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`ORDER AND OPINION
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`)
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`) Civil Action No. 6:13-cv-00775-JMC
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`Paul C. LaRosa, III, Reginald I. Lloyd,
`South Carolina Law Enforcement Division, )
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`Defendants.
`___________________________________ )
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`Plaintiff Robert C. Cahaly is a Republican political consultant who has engaged and
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`seeks to continue to engage in political speech and political campaigns in the state of South
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`Carolina. (ECF No. 1-2 at 8.) Plaintiff filed the instant action on October 31, 2012, in South
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`Carolina state court claiming pursuant to 42 U.S.C. § 1983 that provisions of South Carolina
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`state law enforced by Defendants Paul C. LaRosa, III, Reginald I. Lloyd, and South Carolina
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`Law Enforcement Division (“SLED”) (collectively referred to as “Defendants”) violated his First
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`Amendment right of free speech. (ECF No. 1-2.) Plaintiff requested declaratory relief as well as
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`an injunction to enjoin Defendants from enforcing the relevant South Carolina Code sections.
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`(Id. at 18–19.) Plaintiff also alleged state law claims of false imprisonment and malicious
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`prosecution. (Id. at 19–21.)
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`Defendants filed a notice of removal on March 22, 2013. (ECF No. 1.) This matter is
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`before the court on Plaintiff’s Motion for Preliminary Injunction, or in the Alternative, for Partial
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`Summary Judgment (ECF No. 14), Defendants’ Motion for Summary Judgment (ECF No. 17),
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`and Plaintiff’s Motion to Expedite the Decision (ECF No. 25). For the reasons set forth below,
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`the court GRANTS Plaintiff’s motion for partial summary judgment and thereby DENIES AS
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`1
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 2 of 21
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`MOOT Plaintiff’s motion in the alternative for a preliminary injunction and Plaintiff’s motion to
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`expedite the court’s decision. The court further GRANTS IN PART and DENIES IN PART
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`Defendants’ motion for summary judgment.
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`RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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`South Carolina Code § 16-17-446 (2003) which incorporates certain components of § 16-
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`17-4451 (2003 & Supp. 2013) is at the heart of the analysis of Plaintiff’s constitutional claims.
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`Therefore, the pertinent provisions are identified herein. Section 16-17-446, entitled “Regulation
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`of automatically dialed announcing device (ADAD),” states as follows:
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`(A) Adad means an automatically dialed announcing device which delivers a
`recorded message without assistance by a live operator for the purpose of
`making an unsolicited consumer telephone call as defined in Section 16-17-
`445(A)(3).2 Adad calls include automatically announced calls of a political
`nature including, but not limited to, calls relating to political campaigns.
`(B) Adad calls are prohibited except:
`(1) in response to an express request of the person called;
`(2) when primarily connected with an existing debt or contract, payment
`or performance of which has not been completed at the time of the
`call;
`(3) in response to a person with whom the telephone solicitor has an
`existing business relationship or has had a previous business
`relationship.
`(C) Adad calls which are not prohibited under subsection (B):
`(1) are subject to Section 16-17-445(B)(1), (2), and (3);
`(2) shall disconnect immediately when the called party hangs up;
`(3) are prohibited after seven p.m. or before eight a.m.;
`(4) may not ring at hospitals, police stations, fire departments, nursing
`homes, or vacation rental units.
`(D) A person who violates this section, upon conviction, must be punished as
`provided in Section 16-17-445(F).
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`1 Where the court refers to § 16-17-446 within this opinion and order, it also refers to those
`portions of § 16-17-445 that are incorporated within § 16-17-446.
`2 While this provision references § 16-17-445(A)(3), that section defines “Prize promotion.” See
`S.C. Code Ann. 16-17-445(A)(3). Because it is § 16-17-445(A)(4) that defines “unsolicited
`consumer telephone call”, the court presumes that the statute’s referencing of § 16-17-445(A)(3)
`is a scrivener’s error. Accordingly, the court denies Plaintiff’s request that the court declare that
`§ 16-17-446’s reference to “ADADs” only encompasses messages containing a prize promotion.
`(See ECF No. 14-1 at 29–31.)
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`2
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 3 of 21
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`S.C. Code Ann. § 16-17-446 (emphasis added). Section 16-17-445 is entitled “Regulation of
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`unsolicited consumer telephone calls” and states, in relevant parts:
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`(A) As used in this section:…
`(4) “Unsolicited consumer telephone call” means a consumer
` telephone call other than a call made:
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`(a) in response to an express request of the person called;
`(b) primarily in connection with an existing debt or contract,
` payment, or performance of which has not been completed
` at the time of the call; or
`(c) to a person with whom the telephone solicitor has an
` existing business relationship or had a previous business
` relationship….
`(B) A telephone solicitor who makes an unsolicited consumer telephone call
`must disclose promptly and in a clear conspicuous manner to the person
`receiving the call, the following information:
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`(1) the identity of the seller;
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`(2) that the purpose of the call is to sell goods or services;
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`(3) the nature of the goods or services;…
`(F) The department3 shall investigate any complaints received concerning
`violations of this section. If the department has reason to believe that there
`has been a violation of this section, it may request a contested case hearing
`before the Administrative Law Court to impose a civil penalty…The
`department may also bring a civil action in the Court of Common Pleas
`seeking other relief, including injunctive relief, as the court considers
`appropriate against the telephone solicitor. In addition, a person who violates
`provisions of this section is guilty of a misdemeanor and, upon conviction for
`a first or second offense, must be fined not more than two hundred dollars or
`imprisoned for not more than thirty days…. Each violation constitutes a
`separate offense for purposes of the civil and criminal penalties in this
`section.
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`S.C. Code Ann. § 16-17-445 (emphasis added).
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`Collectively, §§ 16-17-446 and 16-17-445 have the impact of prohibiting consumer and
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`politically-related unsolicited calls made by ADADs, also referred to as “robocalls,” with some
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`exceptions. See S.C. Code Ann. §§ 16-17-446 and 16-17-445. Excepted from § 16-17-446’s
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`general ban on political and commercial robocalls are calls that are based on some form of
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`3 “Department” refers to the Department of Consumer Affairs. S.C. Code Ann. § 16-17-
`445(A)(6).
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`3
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 4 of 21
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`consent by the person called or some existing relationship between the person called and the
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`caller. See S.C. Code Ann. § 16-17-446(B). Even where a political or commercial robocall
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`meets the exception criteria, the statute requires that the caller announce certain identifying
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`information about the source of the call and the call’s purpose. S.C. Code Ann. §§ 16-17-
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`446(C), 16-17-445(B). Where a robocaller violates the provisions of the statute, he may be
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`punished by civil penalty, injunctive relief, or criminal misdemeanor conviction. S.C. Code
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`Ann. §§ 16-17-446(D), 16-17-445(F).
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`On September 17, 2010,4 at Plaintiff’s request, a state representative sought an opinion
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`from the state attorney general on the legality of certain political phone calls. (ECF No. 14-2 at
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`10.) Specifically, the state representative inquired whether under South Carolina law it was
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`acceptable to make political calls to answering machines but not to live answers. (Id.) The
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`representative also asked whether it was legal for organizations such as Survey USA to conduct
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`automated survey calls that require a recipient’s response via phone key. (Id.)
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`The state attorney general responded in an official opinion on September 22, 2010. (ECF
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`No. 14-2 at 11–12; S.C. Att’y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174).) In that
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`opinion, the state attorney general stated his belief that it was legal for a person to make political
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`phone calls with a recorded telephone message delivered to an answering machine and not a live
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`person. (ECF No. 14-2 at 11–12; S.C. Att’y. Gen. Op. dated Sept. 22, 2010 (2010 WL
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`3896174).) The state attorney general further opined that the purpose of § 16-17-446 was to
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`“prohibit the unwarranted invasion by automated dialing devices in order to promote the
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`advocacy of a ‘product’ including a particular candidate.” (ECF No. 14-2 at 11–12; S.C. Att’y.
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`4 Although the letter is dated September 17, 2009, Plaintiff alleges it was written September 17,
`2010. (Compare ECF No. 14-2 at 10 to ECF No. 14-1 at 5.) The record does not resolve this
`conflict; however, this fact is not material to the issues of the case.
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 5 of 21
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`Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174).) As such, the state attorney general
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`concluded that organizations such as Survey USA were allowed to conduct political ADADs that
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`require the recipient’s responses via phone key. (ECF No. 14-2 at 11–12; S.C. Att’y. Gen. Op.
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`dated Sept. 22, 2010 (2010 WL 3896174).) However, the state attorney general cautioned that
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`those political ADADs could not advocate for a particular political candidate but could instead
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`obtain a simple snapshot opinion of a voter. (ECF No. 14-2 at 11–12; S.C. Att’y. Gen. Op. dated
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`Sept. 22, 2010 (2010 WL 3896174).) Thus, the state attorney general interpreted § 16-17-446 to
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`allow political ADADS that were either delivered to an answering machine or that obtained a
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`voter’s opinion by phone key.
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`In late September 2010, State Representative Anne Peterson Hutto formally requested
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`that Defendant SLED investigate robocalls made in reference to her electoral race. (ECF No. 17-
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`3 at 2–3.) Representative Hutto asked that Defendant SLED investigate because her electoral
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`opponent was an assistant solicitor and as a result, Representative Hutto felt local law
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`enforcement would have a conflict of interest in handling the matter. (Id. at 2.) Defendant
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`SLED’s investigation revealed that political robocalls had been made in reference to the races of
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`six female Democratic candidates for the South Carolina House of Representatives (collectively
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`referred to as “the female Democratic candidates” or “the FDCs”). (ECF No. 17-1 at 2; ECF No.
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`17-2 at 2.) In early October, Defendant SLED received voluntary statements from each of the
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`female Democratic candidates. (ECF No. 17-4 at 2–9.) The FDCs complained that robocalls
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`were made, without their authorization or consent, which the FDCs believed were intended to
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`adversely impact their campaigns. (Id.)
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`Defendant LaRosa asserted in a sworn affidavit that Representative Hutto, one of the
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`female Democratic candidates, provided Defendant LaRosa an electronic recording of one of the
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 6 of 21
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`ADAD calls made within her district.5 (ECF No. 17-2 at 2.) Defendant LaRosa averred that the
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`recorded robocall made to Representative Hutto’s constituent stated the following:
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`Please hold for a one-question survey.
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`As you may have heard, Speaker of the House Nancy Pelosi is coming to
`South Carolina.
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`Do you think incumbent Democrat Anne Peterson Hutto should invite her
`fellow Democrat Nancy Pelosi to come campaign for her?
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`Press 1 if you think incumbent Democrat Anne Peterson Hutto should invite
`her fellow Democrat Nancy Pelosi to come and campaign with her.
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`Press 2 if you think incumbent Democrat Anne Peterson Hutto should not
`invite her fellow Democrat Nancy Pelosi to come and campaign with her?
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`(Id. at 2–3.)
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`Defendant SLED learned through its investigation that Plaintiff was responsible for the
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`calls that were placed. (ECF No. 17-1 at 3.) Specifically, Defendant SLED determined that
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`Plaintiff was the president for the entity that paid the phone bills for the phone number from
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`which the calls were made. (ECF No. 17-2 at 3.) Defendant SLED presented arrest warrants for
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`Plaintiff to a state magistrate judge who signed the warrants on November 1, 2010. (ECF No.
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`17-1 at 4.) On November 3, 2010, Plaintiff turned himself in at a detention center where he was
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`booked and released on his own recognizance. (Id. at 4.) At some point, Plaintiff’s criminal
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`matter was transferred to the Solicitor’s Office for the First Judicial Circuit of South Carolina.
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`(ECF No. 17-2 at 4.) On May 1, 2012, the First Circuit Solicitor’s Office dismissed the warrants
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`against Plaintiff. (ECF No. 17-7 at 2.)
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`5 In a written voluntary statement that was sworn and witnessed, Representative Hutto stated that
`she obtained an audio recording of the robocall from one of her constituents on September 24,
`2010. (ECF No. 17-4 at 2.)
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 7 of 21
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`On October 31, 2012, Plaintiff filed this action in South Carolina state court stating under
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`42 U.S.C. § 1983 that Defendants violated the First Amendment on its face and as applied to
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`Plaintiff. (ECF No. 1-2; ECF No. 14-1 at 14–16.) Plaintiff requested declaratory relief and
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`requested that Defendants be enjoined from enforcing the state ADAD law’s restrictions on
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`political robocalls. (ECF No. 1-2 at 18–19.) Plaintiff further claimed that he was falsely
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`imprisoned and maliciously prosecuted in violation of state law. (Id. at 19–21.) Defendants
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`removed this action to federal court on March 22, 2013. (ECF No. 1.)
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`On November 14, 2013, Plaintiff moved for a preliminary injunction, or in the
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`alternative, for partial summary judgment. (ECF No. 14.) On December 6, 2013, Defendants
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`responded to Plaintiff’s motion, (ECF No. 18), and also moved for summary judgment (ECF No.
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`17). On December 16, 2013, Plaintiff replied in support of his motion. (ECF No. 19.) On
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`December 21, 2013, Plaintiff filed a response to Defendants’ motion for summary judgment.
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`(ECF No. 20.) On January 10, 2014, Defendants replied in support of their motion for summary
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`judgment. (ECF No. 23.) On March 30, 2014, Plaintiff moved to expedite the court’s decision.
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`(ECF No. 25.)
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`Preliminary Injunction
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`LEGAL STANDARDS
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`A preliminary injunction is an extraordinary remedy and a plaintiff seeking such remedy
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`carries a substantial burden. See Munaf v. Geren, 553 U.S. 674, 689–90 (2008). In order for a
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`court to grant a preliminary injunction, a movant must show (1) he will likely succeed on the
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`merits, (2) he will suffer irreparable harm in the absence of the injunction; (3) the balance of
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`equities weighs in his favor; and (4) such relief would be in the public interest. Winter v. Natural
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`Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The Fourth Circuit has recognized that
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 8 of 21
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`“in the context of an alleged violation of First Amendment rights, a plaintiff’s claimed
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`irreparable harm is inseparably linked to the likelihood of success on the merits of plaintiff’s
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`First Amendment claim.” Centro Tepeyac v. Montgomery County, 722 F.3d 184, 190 (4th Cir.
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`2013). In jointly considering the third and fourth Winter prongs, the Fourth Circuit has
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`established that a state is not harmed by a preliminary injunction where the enforcement of a
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`statute would likely be found unconstitutional. Id. at 191. The Circuit Court has also instructed
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`that “upholding constitutional rights surely serves the public interest.”
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`Therefore, in the First Amendment context, the first Winter factor of likelihood of
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`success substantially predominates the preliminary injunction analysis. Generally, where a
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`movant demonstrates that he will likely be successful on his constitutional claim, courts will
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`grant the injunction.
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`Summary Judgment
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`Summary judgment is appropriate when the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with affidavits, if any, show that “there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would
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`affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477
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`U.S. 242, 248–49 (1986). A genuine question of material fact exists where, after reviewing the
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`record as a whole, the court finds that a reasonable jury could return a verdict for the nonmoving
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`party. Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
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`In ruling on a motion for summary judgment, the court must construe all inferences and
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`ambiguities against the movant and in favor of the non-moving party. See United States v.
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`Diebold, Inc., 369 U.S. 654, 655 (1962).
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 9 of 21
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`The party seeking summary judgment shoulders the initial burden of demonstrating to the
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`district court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477
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`U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving
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`party, to survive the motion for summary judgment, may not rest on the allegations averred in his
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`pleadings. Rather, the non-moving party must demonstrate that specific, material facts exist
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`which give rise to a genuine issue. See id. at 324. Under this standard, the existence of a mere
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`scintilla of evidence in support of the petitioner’s position is insufficient to withstand the
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`summary judgment motion. See Anderson, 477 U.S. at 252. Likewise, conclusory allegations or
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`denials, without more, are insufficient to preclude the granting of the summary judgment motion.
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`See Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
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`Section 1983: First Amendment Claim
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`DISCUSSION
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`Plaintiff’s motion for a preliminary injunction requests that the court enjoin Defendants
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`from enforcing § 16-17-446 based on Plaintiff’s claim that the statute violates Plaintiff’s First
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`Amendment rights. (ECF No. 14-1 at 1.) Plaintiff also moves in the alternative for partial
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`summary judgment whereby the court would find the statute unconstitutional and issue a
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`permanent injunction. (Id. at 1–2.) Quite expectedly, Defendants’ motion for summary
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`judgment focuses primarily on the contention that the state statutory provisions regulating
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`political robocalls do not violate the First Amendment. (See ECF No. 17-1 at 4–5.) Given the
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`predominance of this claim throughout the various motions, the court will address it first.
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 10 of 21
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`A. First Amendment Claim
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`1. Content-Based Restriction
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`A central tenet of First Amendment jurisprudence is that the government may not restrict
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`speech on the basis of its content. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)
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`(“[A]bove all else, the First Amendment means that government has no power to restrict
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`expression because of its message, its ideas, its subject matter, or its content.”). Where a statute
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`places a differential burden on speech due to its content, it must withstand a strict scrutiny
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`analysis by the court. Maryland v. Universal Elections, Inc., 729 F.3d 370, 376 (4th Cir. 2013).
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`“In contrast, regulations that are unrelated to the content of speech are subject to an intermediate
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`level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas
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`or viewpoints from the public dialogue.” Id. (internal quotations and citation omitted).
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`i. Content-Based or Content-Neutral Distinction
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`The Supreme Court has stated the following with respect to the content-based or content-
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`neutral inquiry:
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`As a general rule, laws that by their terms distinguish favored speech from
`disfavored speech on the basis of the ideas or views expressed are content
`based. By contrast, laws that confer benefits or impose burdens on speech
`without reference to the ideas or views expressed are in most instances
`content neutral.
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`Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). In determining whether a restriction
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`of speech is content-based or content-neutral, the Fourth Circuit has adopted a pragmatic
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`approach. Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013). “The
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`principal inquiry in determining content neutrality in speech cases…is whether the government
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`has adopted a regulation of speech because of disagreement with the message it conveys.”
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`Brown v. Town of Cary, 706 F.3d 294, 301 (4th Cir. 2013). If the government has adopted
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 11 of 21
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`legislation in an effort to censor a particular subject matter over others, strict scrutiny applies.
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`Clatterbuck, 708 F.3d at 556.
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`Plaintiff contends that the code restrictions, in conjunction with the state attorney
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`general’s interpretation of the provisions, are content-based because the government must look at
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`the content of the speaker’s message to determine whether the law has been violated. (ECF No.
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`14-1 at 13.) Essentially, Plaintiff argues that § 16-17-446 is content-based because it restricts
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`calls on the basis of whether their subject matter is commercial or political. (See id. at 13.)
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`Defendants cite to Brown v. Town of Cary, to argue that the Fourth Circuit’s analysis focuses on
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`the purpose behind the regulation’s adoption and not whether the government must look to the
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`content of the speaker’s message. (ECF No. 17-1 at 6–7.)
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`Indeed, the Fourth Circuit has declined to adopt an analysis, as some circuit courts have,
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`which focuses on whether the government must look to the content of the speaker’s message.
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`See Brown v. Town of Cary, 706 F.3d at 302 (“In our view…such an approach imputes a
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`censorial purpose to every content distinction, and thereby applies the highest judicial scrutiny to
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`laws that do not always imperil the preeminent First Amendment values that such scrutiny serves
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`to safeguard.”). However, the court understands the Fourth Circuit’s guidance to indicate that a
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`law, which distinguishes on the basis of content, will be classified as content-based unless the
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`state can show that the law was adopted without a censorial purpose. See Clatterbuck, 708 F.3d
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`at 556; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642–43 (1994) (“[T]he mere
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`assertion of a content-neutral purpose [is not] enough to save a law which, on its face,
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`discriminates based on content.”). While Defendants articulate the correct standard which
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`emphasizes the purpose behind the regulation’s adoption, (ECF No. 17-1 at 6–7), Defendants
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`6:13-cv-00775-JMC Date Filed 06/10/14 Entry Number 27 Page 12 of 21
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`have not presented any evidence of the legislature’s intent in adopting § 16-17-446’s ban on
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`political robocalls.
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`Plaintiff references an opinion of the state attorney general, which constitutes the state
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`attorney general’s interpretation of the statute. (See ECF No. 14-1 at 5.) Plaintiff does so for
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`reasons unrelated to the court’s inquiry into the legislature’s intent in implementing § 16-17-446.
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`Nonetheless, the court finds that the state attorney general’s opinion could be relevant to its
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`inquiry because “[a]lthough attorney general opinions are not precedential, they are afforded
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`great weight in South Carolina, particularly in matters of statutory construction.” Mun. Ass’n of
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`S.C. v. Omaha Prop. & Cas. Ins. Co., 2007 WL 7945179 at *6 (D.S.C. Apr. 9, 2007) (internal
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`quotation marks and citation omitted). The state legislature is presumed to have notice of the
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`state attorney general’s opinion especially since a state representative requested the opinion. See
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`Napa Valley Educator’s Ass’n v. Napa Valley Unified Sch. Dist., 194 Cal. App. 3d 243, 251
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`(1987) (“In the absence of controlling authority, [attorney general] opinions are persuasive since
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`the legislature is presumed to be cognizant of that construction of the statute.”) (internal
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`quotation marks and citation omitted); see also Browning-Ferris, Inc. v. Virginia, 300 S.E.2d
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`603, 605–06 (Va. 1983) (“The legislature is presumed to have had knowledge of the Attorney
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`General’s interpretation of the statutes, and its failure to make corrective amendments evinces
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`legislative acquiescence in the Attorney General’s view.”).
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`The state attorney general interprets § 16-17-446 to allow political robocalls so long as
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`they are either delivered to an answering machine or they conduct a survey, which requires a
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`response via phone key and which does not promote a particular candidate. (ECF No. 14-2 at
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`11–12; S.C. Att’y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174).) The state attorney
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`general stated that the legislative purpose of § 16-17-446 was to prevent the use of robocalls,
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`which promoted a particular candidate. (Id.) However, from this meager explanation, the court
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`cannot determine the full intent of the legislature in banning political robocalls, the central
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`question for resolving whether the restriction is content-based. See Clatterbuck, 708 F.3d at 555
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`(“In this inquiry, the government’s purpose is the controlling consideration.”) (internal quotation
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`marks and citation omitted).
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`Having no evidence from either party regarding the legislative intent, the court has
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`conducted its own inquiry into the legislative history of § 16-17-446’s prohibition on political
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`robocalls. The court was unable to locate any indication of the legislature’s purpose for the
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`restriction. In the absence of any evidence regarding this issue, the court believes it is
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`constrained to find upon the parties’ cross-motions for summary judgment that Plaintiff has met
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`his burden in demonstrating that § 16-17-446 restricts speech on the basis of content.
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`The court further concludes that Defendants have failed to negate the content-based
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`classification due to their inability to demonstrate that the state enacted the legislation for a non-
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`censorial purpose. The court finds it appropriate to place the burden on the state to establish a
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`content-neutral legislative intent because the state entity is the party best positioned to obtain
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`such evidence. Moreover, the court is concerned that placing such burden on the party
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`challenging the statute would create a disincentive for the legislature to create and preserve its
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`legislative history. In that alternative universe, any content-based statute would be upheld where
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`no evidence of legislative intent could be found. Because the court views such a result contrary
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`to the law’s general disfavor of content-based regulations, see R.A.V. v. City of St. Paul, 505 U.S.
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`377, 382 (1992), the court construes the Fourth Circuit’s guidance to require the state to factually
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`support its claim of a non-censorial purpose. See also Clatterbuck, 708 F.3d at 559 (“Indeed, in
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`the cases…proffered by the City to support content-neutrality, the government’s justification for
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`the regulation was established in the record, and the court was able to weigh evidence supporting
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`that justification.”).
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`ii. Strict Scrutiny
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`Having concluded that § 16-17-446 is a content-based restriction, the court evaluates the
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`statute under strict scrutiny. To survive strict scrutiny, a statute (1) must promote a compelling
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`governmental interest and (2) must be narrowly tailored to support that interest. United States v.
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`Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). Where “a less restrictive alternative would
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`serve the Government’s purpose, the legislature must use that alternative.” Id. Defendants state
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`that the government’s purpose in banning political robocalls is to protect residential privacy.
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`(ECF No. 17-1 at 11.) Robocalls, Defendants contend, are very intrusive and do not allow
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`listeners to interact with the callers to prevent future calls. (Id. at 11–12.) The court is certainly
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`sympathetic to that concern and notes that several courts have upheld the constitutionality of
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`robocall restrictive statutes under the intermediate scrutiny framework. See, e.g., Maryland v.
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`Universal Elections, 729 F.3d at 376–77 (“[T]he Supreme Court has long recognized that
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`preserving the sanctity of the home, the one retreat to which men and women can repair to
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`escape from the tribulations of their daily pursuits, is surely an important value.”) (internal
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`quotation marks and citation omitted); Van Bergen v. Minnesota, 59 F.3d 1541, 1555 (8th Cir.
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`1995).
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`Nevertheless, and quite significantly, Defendants state “[t]he government’s interest is in
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`eliminating virtually all robocalls, not just those that express particular points of view, or only
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`those that express commercial messages, or only those that express political messages.” (ECF
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`No. 23 at 4.) Given that interest, the court finds the statute is fatal for its underinclusiveness and
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`its singling out of commercial and political speech. “A law is underinclusive…and thus not
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`narrowly tailored, when it discriminates against some speakers but not others without a
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`legitimate ‘neutral justification’ for doing so.” Nat’l Fed’n of the Blind v. F.T.C., 420 F.3d 331,
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`345 (4th Cir. 2005).
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`Defendants argue that § 16-17-446 is not unlawfully underinclusive because it does not
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`fit the criteria identified by the Fourth Circuit in National Federation of the Blind of what
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`constitutes an impermissible underinclusive restriction. (ECF No. 23 at 4–5.) Those categories
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`are (1) “where the law represents an attempt by the government to give one side of a public
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`debate an advantage over another; (2) where the regulation is so broad or narrow in scope that it
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`undermines
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`the
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`likelihood of a genuine governmental
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`interest; and (3) where
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`the
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`underinclusiveness is so severe that it raises serious doubts about whether the government is
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`actually serving the interests it invokes.” Nat’l Fed’n of the Blind, 420 F.3d at 346. On this
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`record, the court cannot conclude that the restrictions at issue in this case do not fall within any
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`of the categories. Without any evidence regarding the legislature’s purpose for restricting
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`robocalls on the basis of their commercial or political content, the court finds the statute’s
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`differential treatment of speech impermissible.6
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`Accordingly, § 16-17-446’s content-based restriction does not withstand strict scrutiny
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`and therefore violates the First Amendment. For that reason, the court grants Plaintiff’s motion
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`
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`6 The court notes that while several courts have upheld restrictions on robocalls, those cases
`involved statutes that prohibited all types of robocalls with allowances for some exceptions. See
`Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995) (upholding a Minnesota robocall statute
`which applied to all callers regardless of the content of their messages); Bland v. Fessler, 88 F.3d
`729 (9th Cir. 1996) (upholding a California utilities statute regulating ADADs which applied
`broadly to all users of ADADs); Maryland v. Universal Elections, Inc., 729 F.3d 370 (4th Cir.
`2013) (finding the identification requirement provisions of the Telephone Consumer Protection
`Act (“TCPA”) constitutional in part because the disclosure requirement applied regard