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Tuesday, June 17, 2008

Ind. Courts - "Court hears political robo-call case"

Oral arguments were heard yesterday by the Supreme Court in the "robo-call" case, State of Indiana v. American Family Voices, Inc. et al. (Here is a long list of earlier ILB entries.) Meagan Ingerson of the Indianapolis Star has this story this morning. Some quotes:

The legal debate Monday over a ban on prerecorded phone calls focused on the law's intricate details, as both sides told the Indiana Supreme Court this was a straightforward case of how to interpret a statute.

But justices and attorneys also referred to a deeper constitutional issue: privacy rights versus freedom of speech.

"We don't think that the privacy rights of Indiana's citizens in their homes should be overridden by the free speech of telemarketers," Attorney General Steve Carter said after arguments in Terre Haute on Monday. "There are many other ways that political speech can be delivered. This is just one small degree of regulation and of a particular type of technology." * * *

The case centers on the 1988 Indiana Autodialer Act, which limits the use of automated phone calls. The statute mandates that a live operator first disclose the source and purpose of the call, as well as any goods or services being promoted. * * *

Much of the debate revolved around whether the law applied to political groups. Justice Frank Sullivan questioned whether politicians would have created a more specific law to regulate themselves.

"If they wanted to regulate campaign practices, it seems to me they would do it more explicitly than in silence in a robo-call statute, right?" Sullivan asked Solicitor General Thomas Fisher.

Fisher told justices the law aims to protect privacy. Because the legislature did not to create an exception for political calls, the statute applies to all callers delivering all messages, he said.

But Edward Delaney, representing defendant Jim Gonzalez, said the statute clearly was intended to regulate only commercial speech, given that it defines the purpose of the call as trying to solicit the purchase of goods or services.

Gonzalez, based in California, helped prepare the scripts and placed the calls.

"There is no contention that a political candidate is promoting goods or services," Delaney said.

The New York Sun has an editorial today about yesterday's oral arguments. The New York paper definitely takes a position:
Both the Republican and Democratic parties filed briefs opposing the lawsuit; a circuit judge ruled in favor of Family Voices, and Mr. Carter appealed to the state Supreme Court, where arguments were heard yesterday.

In a question posed to Edward Delaney, a lawyer representing Family Values before the court, Justice Dixon demonstrated a fundamental misapprehension of the issue. "This statute," the Indiana Supreme Court justice said, "seems to be not about political speech or commercial speech, but about the sanctity of one's home ... the right to have peace and quiet and tranquility in their home." One might as well ban political leaflets delivered to doorsteps and mailboxes or door-to-door campaigning by politicians. Or television commercials transmitted to home-based televisions. Funny, we checked the Bill of Rights, and found a protection for free speech, but none, other than the one against unreasonable search and seizure, guaranteeing quiet and tranquility in the home. If there were such a protection, no child would be safe, never mind robo-calls.

The chairman of the Democratic Party of Indiana, Dan Parker, provided a more accurate characterization of the issue before the court, which was quoted by the Associated Press. "It's the right of a candidate to try to get their message out before an election," he said.

There are plenty of natural consequences for politicians who abuse this tactic. An irritated person might vote for the other guy out of spite. An effort by Senator Feinstein to eliminate such calls between 8 p.m. and 9 a.m. ignores this logic; we searched the First Amendment and couldn't find the language that says the constitutional guarantee of free speech only applies between 9 a.m. and 8 p.m. The right move for the Indiana justices is to enforce the First Amendment. If Attorney General Carter can't stand the phone calls let him turn down the volume of his ringer, or take the phone off the hook, or vote only for political candidates who forswear robo-calls. But let him not try to silence the sound of democracy in action.

Posted by Marcia Oddi on June 17, 2008 11:11 AM
Posted to Ind. Sup.Ct. Decisions