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Thursday, June 12, 2008

Ind. Courts - "Indiana high court takes up 'robo' calls" next Monday [Updated]

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today on a case to be heard Monday, June 16th, at 1:00 PM before the Indiana Supreme Court, State of Indiana v. American Family Voices, Inc. et al. Some quotes from the lengthy story:

The future of prerecorded political calls in Indiana -- considered by some voters as pesky but by many campaigns as productive -- is in the hands of the Indiana Supreme Court.

At issue is whether a 1988 state law bans all so-called "robo" calls, which are placed by automated dialers, or is meant only for those that are commercial or sales-related.

The court will hear arguments Monday in a case that stems from calls made in 2006 by American Family Voices, a group based in Washington, D.C., during the contentious 9th Congressional District race won by Democrat Baron Hill over Republican Mike Sodrel.

The impact of the decision, though, will be felt statewide -- and could have national implications if the court finds that regulating political calls violates constitutional protections of free speech.

"The court is the only thing that stands in the way of an avalanche of unwanted, unnecessary phone calls this fall in Indiana," said state Attorney General Steve Carter, whose office sued American Family Voices for making automated calls criticizing Sodrel's record in Congress.

"It's literally something that will impact millions of consumers," Carter said. "Either there will be millions more phone calls or there will be millions of moments of privacy preserved, all depending on the outcome of this case."

But the state Republican and Democratic parties say that the calls, when used for political messages, are protected free speech. They have filed a brief in the case even though they were not parties to the original lawsuit.

"It's not up to the government to decide what modes of communication are most efficient and effective for political speech," said James Bopp, a Terre Haute attorney representing the political parties. * * *

The General Assembly passed the law in 1988, but it wasn't enforced against campaigns until 2006, when Carter wrote to the Republican and Democratic parties to warn them that it applied to political calls. The parties were frustrated but abided by the ban.

Some out-of-state special interest groups -- including American Family Voices -- did not. After six complaints from 9th District voters, Carter filed suit against American Family in Harrison Circuit Court seeking penalties of up to $5,000 for each alleged violation.

But Orange Circuit Judge Larry Blanton, who was serving as special judge in the case, ruled that the state law applied only to commercial calls. Carter appealed, and the Supreme Court agreed to take up the case directly, bypassing the Court of Appeals.

Attorneys for American Family Voices argue that the law is ambiguous because it doesn't define "message" to specify whether it applies to commercial or political calls or both.

The organization's brief, however, said that other aspects of the law -- including its placement in the part of the Indiana code that regulates trade and language that allows the calls if a live operator first discloses the kinds of goods or services the call is promoting -- make it obvious it was meant only for sales calls.

"I'm going to be arguing that the statute the attorney general is trying to use to regulate political speech wasn't designed for that purpose, that it was designed to regulate commercial speech only," said Indianapolis attorney Anthony Overholt. "The constitutional issues will only come into play, I think, if the Supreme Court were to decide that the statute does in fact reach political speech."

Carter downplayed the constitutional issue, saying that the law doesn't regulate the content of the message -- the speech itself -- just how it's delivered.

(BTY - The ILB is intrigued by the argument about the placement of the law in the Indiana Code determining its interpretation and may write more on this at some point.)

[Updated at 10:30 AM] It has just been announced by the Supreme Court that the oral argument will be in the Tilson Auditorium in the Hulman Center at Indiana State University in Terre Haute. No word as to what impact this will have, if any, on the live and delayed webcasts.

Posted by Marcia Oddi on June 12, 2008 08:46 AM
Posted to Upcoming Oral Arguments