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Thursday, December 29, 2011

Ind. Decisions - Supreme Court decides Freeeats, a robo-call case, upholding the Indiana statute

As the ILB wrote in this entry dated Sept. 27, 2011, where Federal Judge William T. Lawrence has just issued a permanent injunction in Patriotic Veterans against the enforcement of Indiana’s Automated Dialing Machine Statute (“IADMS”), Ind. Code 24-5-14 with regard to interstate calls made to express political messages. :

Freeeats is another robo-call case with a long history both in federal and state court. Judge McKinney upheld the Indiana law in an Oct. 2006 ruling. The 7th Circuit then dismissed in Sept. 2007, "saying the case doesn't belong in federal court," according to a story at the time. The case then made its way through state court, the latest entry the ILB has is of oral argument before the Supreme Court on Thursday, January 20th in State of Indiana v. FreeEats.
Today, in State of Indiana v. Economic Freedom Fund, FreeEats.com, Inc., Meridian Pacific, Inc., and John Does 3-10, a 31-page, 4-1 opinion, Justice David writes:
In this case, the State seeks to enforce a particular provision of the Indiana Autodialer Law against an entity that uses an automated dialing device to deliver prerecorded political messages. The trial court, on cross-motions for preliminary injunction, decided that the entity had a reasonable likelihood of success on the merits of its claim that the live-operator requirement of the Autodialer Law violates the free speech clause of the Indiana Constitution.

We hold that the entity’s First Amendment claim would likely fail. We also hold there is no reasonable likelihood of success on the merits of the entity’s claim that the Autodialer Law’s live-operator requirement materially burdens its right to engage in political speech in violation of the state constitution. * * *

We find that the trial court incorrectly found that FreeEats had a reasonable likelihood of success on its claim that the live-operator provision of the Autodialer Law violates Article 1, Section 9 of the Indiana Constitution. Accordingly, we reverse the trial court’s granting in part of the preliminary injunction in favor of FreeEats and reverse the trial court’s denial in part of the preliminary injunction against the State. We remand to the trial court for further proceedings.

Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion [which begins at p. 16 of 31] Like Special Judge Kenneth G. Todd, I believe that application of the live-operator requirement in the present case imposes a material burden on political speech in violation of Art. I, § 9, of the Indiana Constitution.1 And I further believe that application of this requirement violates the First Amendment to the United States Constitution. I therefore respectfully dissent. * * *

I would hold that the Indiana Autodialer Law fails to satisfy the level of intermediate scrutiny applicable to content-neutral laws. And because the statute runs afoul of the First Amendment, it seems to me even clearer that it violates Art. I, § 9, of the Indiana Constitution, for when it comes to political speech, Price v. State provides Hoosiers broader protections than the First Amendment.

Posted by Marcia Oddi on December 29, 2011 12:16 PM
Posted to Ind. Sup.Ct. Decisions