Last week, the United States Court of Appeals for the Fourth Circuit struck down a South Carolina anti-robocall statute. The Circuit Court determined that the South Carolina law unconstitutionally regulated free speech in violation of the First Amendment.
What about the South Carolina anti-robocall statute made it unconstitutional?
The statute, enacted in 1991, included restrictions on automated telephone calls that are placed for the purpose of unsolicited telemarketing, or calls that are of a political nature, including calls related to a political campaign. However, the statute did not similarly restrict, for example, calls with ideological but not “political” messages or calls that contained religious messages. A violation of the statute constituted a misdemeanor with penalties ranging from $200-$500 or a maximum prison sentence of 30 days, based on the number of prior convictions.
Following extensive motion practice and a lengthy appeals process, the Court ultimately ruled that the statute violated the First Amendment by being a content-based restriction on speech, applying only to commercial telemarketing and political calls, but not to calls made for other purposes. The Court went on to conclude that the statute was unable to withstand strict scrutiny analysis, which mandates that the government prove that the restriction on speech furthers a compelling interest and that the statute is narrowly tailored to achieve that interest. The Court found that the statute was not narrowly tailored to serve the asserted government interest of protecting residential privacy and tranquility from unwanted and intrusive robocalls because less restrictive alternatives to outright prohibition on such robocalls were plausible, such as time-of-day restrictions, do-not-call lists, etc.
Protect Yourself Against Robocall-Related Liability Through Smart Practices and Procedures
While this case represents a victory for the telemarketing industry, we have previously written about the increasing vigilance of the FTC and federal and state authorities in pursuing marketers engaged in robocalling campaigns. Accordingly, prior to embarking on any telemarketing campaign, it is imperative for businesses to have their practices and procedures examined by experienced counsel to ensure compliance with applicable state and federal telemarketing laws.