Eighth Circuit Upholds Minnesota Law Prohibiting Robocalls

It is hard to find anything more annoying or despised than robocalls.phone

Recently the Eighth Circuit in Gresham v. Swanson, upheld a Minnesota law prohibiting robocalls against a free speech challenge.  The Petitioner in the Minnesota case sought a preliminary injunction against enforcement of the Minnesota statute, which was denied by the district court. The Eighth Circuit upheld the district court’s decision on the grounds that it was unlikely that the Petitioner would succeed on its First Amendment claim.

The Minnesota statute is simple and well written. It provides that:

“…a caller may not make a robocall what unless “(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered.” Subsection (b) then provides that subsection (a) does not apply to: “(1) messages from school districts to students, parents, or employees, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules.” § 325E.27(b). Subsection (b) also exempts from the requirements of subsection (a) “messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind.”

The Eighth Circuit concluded that the first three exceptions in the statute were not content-based restrictions and were based upon valid time, place, and manner restrictions. Subsection (b) of the Act exempting messages from not-for-profit tax-exempt charitable organizations sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled military veterans was found to be content based and unconstitutional, which the Court severed from the rest of the statute. Other states have made the same mistake by carving out exceptions for not for profits and other similar organizations only to find out that courts invalidated their statute. The Minnesota statute and the opinion by the Eighth Circuit upholding the statute indicates that the statute should survive any challenge making it a good model  by Missouri.

bill of rights

Bill of Rights

Federal and State Statutes

Federal – The Telephone Consumer Protection Act (Act) limits the use of certain automated calls or texts and prerecorded voice calls (all of which are sometimes called “robocalls”), primarily made to cell phones.  The Act and the  implementing rules apply to political campaign-related calls or texts; however, the Act allows robocalls made to telephone landlines, even without express consent.

State – Missouri also has a no  call list but the exceptions to the law swallow the prohibitions. Organizations that are exempt include nonprofit organizations and charities, companies that you’re already doing business with (like your bank or cable TV provider), political groups, and research groups, making it particularly ineffective with respect to citizens who have land lines who do not want these calls.

What can you do  to block robocalls

First, get on the federal and Missouri no call list. There are many online articles, including an article by Huffington Post, that provides information about how to block robo calls.

Initiative Petition –  It would seem that  there is no possibility that the Missouri legislature would ever adopt a law prohibiting  robocalls like Minnesota. After all, many legislators use robocalls and there are well organized and financed groups that have a business interest in continuing the use of robocalls. Citizens who are annoyed by these calls may want to consider other action like an initiative so the voters can decide. 

 

 

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