Right to Robocall: Federal Judge Strikes Down Wyoming’s Ban on Political Robocalls, Finding That It Violates First Amendment Rights

A federal judge recently put a kibosh on a Wyoming statute that prohibits political robocalls, ruling that they are protected by the First Amendment, despite Wyoming’s attorney general arguing that the statute advances states’ interest of residential privacy.

Judge Alan B. Johnson found in a ruling filed last week in the U.S. District Court of Wyoming, that Wyoming Statute § 6-6-104 is a content based restriction that does not survive the requisite strict scrutiny standards and is therefore unconstitutional. He concluded that the statute was “over inclusive” in that it “completely prohibits political speech through robocalls while allowing commercial speech under certain circumstances.” The ruling puts an end to a more than a yearlong challenge filed by Plaintiffs Victory Processing, LLC and Dave Dishaw’s (“Victory Processing”) against the Wyoming Statute.

Victory Processing, a company that conducts data gathering and political consulting and works primarily through the use of automated telephone calls, or robocalls, claimed that the statute deprived it of the right to engage in political speech, from gathering information on behalf of third parties through robocalls, and has lost individual and business opportunities.

On cross motions for summary judgment, the  Attorney General for the State of Wyoming (“Attorney General”) argued that Victory Processing did not have standing to bring a First Amendment claim and Victory Processing argued that Wyo. Stat. § 6-6-104 violates the First Amendment of the U.S. Constitution.

Judge Johnson first walks us through two aspects of standing issues – Article III standing and the prudential standing requirements,  and ultimately found that Victory Processing had established standing. Johnson states that Victory Processing has Article III standing because it can  “can establish an injury in fact, because the conduct of making political robocalls arguably affects a constitutional interest.” He also found that, in addressing third party standing, Victory Processing is already litigating a similar case and would be the one to place the robocalls, and as such was well positioned to satisfactorily frame the First Amendment issues of the case.

Next, Johnson’s ruling examined Wyoming’s law against political robocalls as content-based restrictions on political speech, writing that the statute is subject to strict scrutiny and the State must show that the statute’s speech restrictions “(1) advance a compelling state interest and (2) are narrowly tailored to serve that interest.” He rejects the Attorney General’s argument that the Wyoming statute was content-neutral. In so ruling, he states the statute “limits the messages or ideas based on five specific categories of calls” – including “data gathering or polling” and robocalls for “promoting a political campaign” and “provides exceptions to the ban through its reference to Wyo. Stat. §40-12-303.”  Additionally, the expectations state only that telephonic sales calls are allowed only if one of the three exceptions under Wyo. Stat. §40-12-303 are met. Thus, Johnson applied strict scrutiny, as the statute prohibits calls based on their content.

The Attorney General argued that the Wyoming Statute advances a compelling state interest of residential privacy. In response, Johnson recognized that indeed the “tranquility, well-being and peacefulness of the home is a substantial interest worth protecting” but followed the Tenth Circuit’s recognition that residential privacy is only a substantial interest. Consequently, Johnson ruled that because Wyo. Stat. §6-6-104 is a content based restriction with only a substantial interest, the statute did not pass strict scrutiny standards.

Judge Johnson goes on to argue that even assuming that residential privacy were a compelling governmental interest, the Wyoming Statute still fails to be narrowly tailored to survive strict scrutiny because it was “over inclusive.” He argued that the use of the term “telephonic sales calls” suggests that the three exemptions found in Wyo. Stat. §40-12-303(b) only apply to commercial calls, leaving no channels for political speech to residents of Wyoming through the stated exceptions to the robocall ban.”

Therefore, Judge Johnson concluded that Victory Processing has standing and found that the Wyoming Statute was unconstitutional as it imposed a content-based restriction on political speech and the State failed to prove that the statue advances a compelling state interest and is narrowly tailored to serve that interest.

This decision in favor of free speech makes it clear that political robocalls can be protected by the First Amendment.

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