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October 2007

New Hampshire Statute Regulating Political Prerecorded Calls is Likely Unconstitutional

by William Raney

Summary

With the political season in full swing, national and state candidates are implementing prerecorded political calling campaigns and consumer reaction is sure to follow.

Article

With the political season in full swing, national and state candidates are implementing prerecorded political calling campaigns and consumer reaction is sure to follow.

Surprisingly enough, however, in the last legislative cycle most of the bills proposed to ban prerecorded political calls failed to become law. The bills had two types. The first more serious restriction would ban prerecorded political calls. The second would only ban prerecorded political calls to persons on the state and federal “do-not-call” list.


Both types of restrictions have major constitutional issues. The “ban” type rules would treat political speech less favorably than commercial speech as many forms of commercial prerecorded calls are legal (especially to established customers).

The second type of restriction is equally suspect from a constitutional standpoint, as the state and national “do-not-call” lists were not originally intended to apply to political or charitable calling. Persons whose names are already on the list, then, would be denied the opportunity to engage in political discourse based on a past decision, retroactively applied to this new medium.

One law that did pass, however, was New Hampshire Revised Statute 664:14-A which bans prerecorded political calls to any telephone number on the federal “do-not-call” list. Id. at III. Violations of the section are subject to a civil penalty of $5,000 per violation as well as private actions by recipients of the calls. Id. at IV.

This statute, however, directly violates the Supreme Court’s ruling in Metro Media, Inc. v. City of San Diego, 453 U.S. 490 (1981) by treating commercial messages less favorably than political speech. Political speech is “fully protected” by the First Amendment, while commercial speech enjoys a lesser level of protection. This statute stands this level of protection on its head by allowing prerecorded commercial established business relationship calls, but banning political organizations from contacting their own members, i.e. those with an established business relationship with the organization, with the prerecorded call.

This statute is ripe for constitutional challenge.

Exhibits

EXHIBIT A
RSA 664:14-a (2007)
664:14-a Prerecorded Political Messages.

     
  1. In this section, “prerecorded political message” means a prerecorded audio message delivered by telephone by:
       
    1. A candidate or political committee; or
      2.  
    2. Any person when the content of the message expressly or implicitly advocates the success or defeat of any party, measure, or person at any election, or contains information about any candidate or party.


  2. No person shall deliver or knowingly cause to be delivered a prerecorded political message unless the message contains, or a live operator provides, within the first 30 seconds of the message, the following information:
      3.  
    1. The name of the candidate or of any organization or organizations the person is calling on behalf of.
      2.  
    2. The name of the person or organization paying for the delivery of the message and the name of the fiscal agent, if applicable.


  3. No person shall deliver or knowingly cause to be delivered a prerecorded political message to any telephone number on any federal do not call list.

    4.  

    1. A violation of this section shall result in a civil penalty of $5,000 per violation.
      2.  
    2. Any person injured by another’s violation of this section may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper. If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater. If the court finds that the act or practice was a willful or knowing violation of this section, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney’s fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this section without bond, subject to the discretion of the court. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.

References

New Hampshire Bar Journal

For article, “Survey of New Hampshire 2004 Election Issues,” see 45 N.H.B.J. 10 (July 2004).