Court finds Arkansas ban on political robocalls violates First Amendment

In an unconventional election season, political organizations are now free to make political robocalls to Arkansas voters without worrying about violating the State’s law banning such calls.

On July 27, 2016, the Eastern District of Arkansas ruled that Ark. Code Ann. § 5-63-204(a)(1), which prohibits the use of robocalls for “soliciting information, gathering data, or for any purpose in connection with a political campaign” is a content-based restriction on speech that violates the First Amendment to the U.S. Constitution.  Gresham & Conquest Communs. Group v. Rutledge, Case No. 4:16-cv-00241, 2016 U.S. Dist. LEXIS 97964 (E.D. Ark. July 27, 2016).  

The statute did not pass the Court’s application of strict scrutiny as the State failed to prove the statute advanced a compelling interest and was narrowly tailored to serve that interest.  The State Attorney General is prohibited from enforcing the statute as it applies to robocalls made in connection with a political campaign.  

Arkansas was the last remaining state to completely ban political robocalls regardless of whether the caller had an existing business relationship or express consent from the called party.  In 2011, the previous Arkansas Attorney General noted in an advisory opinion that the ban on political robocalls was “highly constitutionally suspect under the First Amendment to the U.S. Constitution.”

Earlier this year, a political action committee similarly challenged Indiana’s ban on robocalls, which includes calls made for political purposes.  While Patriotic Veterans, Inc. argued the statute, Ind. Code. Ann. § 24–5–14–1, violated its First Amendment rights, the Court ruled the statute was “content neutral and is a valid time, place, or manner restriction on speech, and, accordingly, it does not violate the First Amendment.”  Patriotic Veterans, Inc. v. State of Indiana, Case No. 1:10-cv-00723, 2016 U.S. Dist. LEXIS 47052 (S.D. Ind. Apr. 7, 2016).

Challenges to state laws on political robocalls are becoming more common.  If you are making political robocalls, please contact us to ensure you are compliant with federal and state laws.