South Carolina Ban on Prerecorded Political Calls Found Unconstitutional

Summary

In a win for political speech, a federal judge struck down a South Carolina law that bans prerecorded political phone calls. The Court held the law violates the First Amendment as a content-based restriction on speech that discriminates against some speakers but not others without a legitimate, neutral justification for doing so.

Article

In a win for political speech, a federal judge struck down a South Carolina law that bans prerecorded political phone calls.  The Court held the law violates the First Amendment as a content-based restriction on speech that discriminates against some speakers but not others without a legitimate, neutral justification for doing so. 

The law, S.C. Code Ann. § 16-17-446, entitled “Regulation of automatically dialed announcing device (ADAD),” states that:

(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). 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 ….

S.C. Code Ann. § 16-17-446 (emphasis added). 

The Court also found that the law impermissibly compels speech because it requires disclosures based on the speech’s content, but limited its ruling to the statute’s prohibition on prerecorded political calls.  It did not address the constitutionality of prerecorded commercial calls, which the Court noted involves distinct considerations. 

Political consultant Robert Cahaly brought the lawsuit after he was arrested in 2010 for making prerecorded calls comparing a political candidate to then House Speaker Nancy Pelosi.  In a statement, Cahaly called the ruling “a win for the Constitution and most especially the Bill of Rights.”

While the U.S. District Court held the statute unconstitutional, it is likely that the State will appeal the decision.  During this pendency, telemarketers and nonprofit organizations should continue to follow the law in case the ruling is overturned.

The full opinion is available at: 
https://www.docketalarm.com/cases/South_Carolina_District_Court/6—13-cv-00775/Cahaly_v._LaRosa_et_al/27/