A decision handed down Wednesday in Arkansas federal court struck down a state law passed 35 years ago that banned political robocalls. The statute restricted commercial robocalling and also made it unlawful to solicit information “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages.

The restriction was challenged by a Virginia-based communications firm, Conquest Communications Group, which sought “to conduct automated telephone calls in the state, including surveys, messages concerning voting, express advocacy calls, and a variety of other calls made in connection with political campaigns.”

The company’s president alleged in a federal lawsuit brought in May that his firm has “been chilled and restrained from performing services for political clients in Arkansas” in violation of the First Amendment.

To pass constitutional muster, lawyers representing Arkansas needed to show that the speech restriction advanced a compelling government interest and did so in the least censorial way.

The state attorney general’s office defended the robocall prohibition as a justifiable effort to respect people’s privacy interests and protect them from unwanted intrusions into their homes. They also argued that the law prevented “the seizure of phone lines, which could interfere with emergency calls being placed or received.”

U.S. District Judge Leon Holmes was unpersuaded. He said the state’s motives would be more convincing had the law targeted robocalling more broadly.

States Judge Holmes:

The Attorney General fails to explain why automated calls other than commercial calls and those made in connection with political campaigns–for example, calls encouraging individuals to contact a member of Congress regarding a bill or to attend a townhall meeting regarding a public issue–using automated dialing systems do not trample upon the state’s interests in residential privacy and public safety…

If the interests of privacy and safety warrant restriction of automated calls made for a commercial purpose or in connection with a political campaign, they also warrant restriction of other types of automated calls. The statute is underinclusive. Banning calls made through an automated telephone system in connection with a political campaign cannot be justified by saying that the ban is needed to residential privacy and public safety when no limit is placed on other types of political calls that also may intrude on residential privacy or seize telephone lines.

Update: A spokesman for Arkansas Attorney General Leslie Rutledge’s office sent Law Blog a statement on the ruling: “Despite this decision, Arkansans continue to be protected from commercial robocalls selling goods and services. The Attorney General continues to review the decision and is evaluating how to proceed.”

(Published by The Wall Street Journal - July 28, 2016)