The Seventh Circuit on January 3, 2017 shot down a veterans’ group challenge to Indiana’s anti-robocall statute, Ind. Code §24-5-14-5. The statute forbids recorded messages from automatic dialing machines unless the subscriber has consented to receiving the calls, or the message is preceded by a live operator to obtain the called party’s consent before the message is played. Exceptions are carved out, however, for messages (1) from school districts to students, parents or employees; (2) to subscribers with whom the caller has a current business or personal relationship; and (3) advising employees of work schedules. Patriotic Veterans, Inc., argued that the statute disfavored political speech and therefore was content discrimination. The Seventh Circuit bluntly said in response, “We don’t get it.” Judge Easterbrook, writing for the panel, explained that, “[t]he exceptions collectively concern who may be called, not what may be said, and therefore do not establish content discrimination.” Patriotic Veterans Incorporated v. State of Indiana, No. 16-2059 (7th Cir.).
Patriotic Veterans also argued that “the statute is excessive in relation to its goal of protecting phone subscribers’ peace and quiet, and that the First Amendment thus requires Indiana to make an exception for political speech.” The Court disagreed with the rationale, holding that doing so would take a content-neutral law and make it invalid by creating message-based distinctions. “That exception, if created, would be real content discrimination.” Judge Easterbrook stated frankly, “That’s out of the question. Indiana’s law must stand or fall as written.” The decision upheld the Southern District of Indiana’s decision that the law is constitutional. This is the second time that this case came before the Seventh Circuit. In 2013 the Court reversed the district court’s decision that the Indiana statute was preempted by the TCPA.