Minnesota Allowed to Restrict “Robocalls” That Contain Political Speech

Have you ever gotten an annoying “robocall” around election time–those pre-recorded messages that campaigns make? Well the state of Minnesota sought to restrict their use, and the state recently prevailed against a First Amendment challenge.

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The law requires simply that, before placing a robocall (any robocall–not just a political one), the recipient must have given her consent. But the law exempts four types of robocalls from this prior-consent requirement: messages from schools, messages from businesses to its customers, messages advising employees of work schedules, and messages from charities soliciting clothing donations for veterans. (That last one was added in a 2009 amendment to the statute.)

Enter Victor Gresham–a political consultant whose company engages in political speech by placing robocalls for clients. He sued the state of Minnesota, arguing that the state’s restrictions on robocalls violate the First Amendment, but he lost.

The Eighth Circuit ruled for Minnesota. Relying on a 1995 case, the court found that the law’s prior-consent requirement and the first three exceptions were valid, content-neutral restrictions on speech. And although the court found that the fourth exception (the one for charities that take clothing for veterans) was content based, it found that that exception was “severable” from the rest of the law, meaning that the state could still apply its prior-consent rule to Gresham’s robocalls.

Case: Gresham v. Swanson, No. 16-3219 (8th Cir. Aug. 2, 2017) (opinion here)

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