Patriotic Veterans, Inc. v. State

177 F.Supp.3d 1120

Patriotic Veterans, Inc., Plaintiff,

v.State of Indiana, et al., Defendants.

Cause No. 1:10-cv-723-WTL-MPB

United States District Court, S.D. Indiana, Indianapolis Division.

Signed April 7, 2016

Allison R. Hayward, Bradley A. Smith, Center for Competitive Politics, Alexandria, VA, Mark Jason Crandley, Barnes & Thornburg LLP, Indianapolis, IN, Paul L. Jefferson, Jefferson & Brewer LLC, Fishers, IN, for Plaintiff.

Ashley Tatman Harwel, David A. Arthur, Heather Hagan McVeigh, Thomas M. Fisher, Indiana Office of the Attorney General, Indianapolis, IN, for Defendants.

ENTRY ON MOTIONS FOR SUMMARY JUDGMENT

Hon. William T. Lawrence, Judge, United States District Court, Southern District of Indiana

This cause is before the Court on the parties' cross–motions for summary judgment (Dkt. Nos. 32, 35). The motions are fully briefed and the Court, being duly advised, DENIES the Plaintiff's motion and GRANTS the Defendants' motion for the reasons set forth below.

I. BACKGROUND

Plaintiff Patriotic Veterans, Inc., is an Illinois non-profit corporation that exists for the purpose of informing voters of the positions taken by candidates and office holders on issues of interest to veterans. In furtherance of its mission, the Plaintiff wishes to place automated interstate telephone calls to Indiana residents to communicate political messages relating to particular candidates or issues. However, doing so would violate Indiana's Automated Dialing Machine Statute (“IADMS”), Ind. Code § 24–5–14–1 et seq., which bans autodialed calls with the following limited exceptions:

(a) This section does not apply to any of the following messages:

(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.

(3) Messages advising employees of work schedules.

(b) A caller may not use or connect to a telephone line an automatic dialing-announcing device 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.¹

Ind. Code § 24–5–14–5. If the IADMS did not exist, the Plaintiff has indicated that it would place automated phone calls related to its mission to Indiana Veterans and voters. Indiana Attorney General Greg Zoeller has declined to exempt political calls from enforcement under the IADMS² and would seek fines and injunctive relief against the Plaintiff if it placed automated political calls to Indiana residents. Indeed, violation of the IADMS constitutes a Class C misdemeanor. Ind. Code § 24–5–14–10.

In an earlier ruling, the Court held that the Telephone Consumer Protection Act preempted the IADMS. Patriotic Veterans, Inc. v. Indiana , 821 F.Supp.2d 1074 (S.D.Ind.2011). The Seventh Circuit reversed the Court's ruling on preemption and remanded the case for the Court to evaluate “whether Indiana's statute violates the free speech rights protected by the First Amendment to the United States Constitution.” Patriotic Veterans, Inc. v. Indiana , 736 F.3d 1041, 1054 (7th Cir.2013).

II. DISCUSSION

Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In this case, the parties agree that none of the relevant facts are in dispute; rather, the resolution of this case hinges solely on issues of law.

A. Overbreadth

The Plaintiff first argues that the IADMS is overbroad. Specifically, the Plaintiff argues that the IADMS “sweeps into its scope protected political speech, including speech listeners wish to receive.” Dkt. No. 33 at 14. To support a claim of overbreadth, the party before the court must identify a significant difference between its claim that the statute is invalid on overbreadth grounds and its claim that it is unconstitutional as applied to its particular activity. See Members of City Coun ci l of City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 802, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

Here, the Plaintiff's overbreadth challenge rests on the IADMS' application to political messages. The Plaintiff separately challenges the IADMS' application to its own political messages. Nothing in the record indicates that the IADMS will have any different impact on third parties' interests in free speech than it has on the Plaintiff's interests. See id. Thus, the Court will limit its review of the IADMS to the case before it and analyze it as applied to the Plaintiff.

B. Content Neutrality

The First Amendment prohibits the enactment of law “abridging the freedom of speech.” U.S. Const. I. A government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of City of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015). Content-based speech restrictions are subject to strict scrutiny, id. while content-neutral laws are to be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication, Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). A court must “consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Reed , 135 S.Ct. at 2227 (quoting Sorrell v. IMS Health, Inc. 564 U.S. 552, 131 S.Ct. 2653, 2664, 180 L.Ed.2d 544 (2011) ). Distinctions based on message may define regulated speech by particular subject matter or may define regulated speech by its function or purpose. Reed , 135 S.Ct. at 2227.

The Supreme Court has recognized an additional category of laws that, while “facially content neutral, will be considered content-based regulations of speech: laws that cannot be ‘justified without reference to the content of the regulated speech,’ or that were adopted by the government ‘because of disagreement with the message [the speech] conveys.’ ” Id. (quoting Ward , 491 U.S. at 791, 109 S.Ct. 2746 ).

The IADMS defines “caller” broadly as “an individual, corporation, limited liability company, partnership, unincorporated association, or the entity that attempts to contact, or contacts, a subscriber in Indiana by using a telephone or telephone line.” Ind. Code § 24–5–14–2. The central provision of the statute restricts the caller from using an automatic dialing-announcing device (“ADAD”) or connecting an ADAD to a telephone line unless the subscriber has consented to the receipt of the message or the message is preceded by a live operator who obtained the subscriber's consent. As noted above, the provision applies to all messages with three exceptions: (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; and (3) messages advising employees of work schedules. Ind. Code § 24–5–14–5.

As the Seventh Circuit recognized, these limited exceptions are based on the recipient's implied consent:

Indiana's statute ... does appear to be a prohibition—it prohibits automatic dialing devices unless consent is first obtained. There are indeed other enumerated exemptions to the statute, but each describes a form of implied consent: Autodialers may be used to make calls “(1) from school districts to students, parents, or employees; (2) to subscribers with whom the caller has a current business or personal relationship; or (3) advising employees of work schedules.” Ind.Code § 24–5–14–5. By accepting a job, an employee impliedly consents to phone calls from his employer for work related scheduling purposes, as do families who enroll children at school or people who enter into business relationships.

Patriotic Veterans , 736 F.3d at 1047. As such, these exceptions are based on the relationship of the speaker and recipient of the message rather than the content of the message.

On its face, the IADMS does not draw a distinction based on the content of speech, the topic discussed, or any message expressed. It does not protect specific categories of speech while prohibiting others; rather, its exceptions are based on implied consent due to the prior relationship between the parties, not the content of the caller's message. Thus, the IADMS is content neutral on its face.

In the second step of the Reed analysis, a facially content-neutral law can still be categorized as content based if it “cannot be ‘justified without reference to the content of the regulated speech’ ” or if it was “adopted by the government ‘because of disagreement with the message the speech conveys.’ ” 135 S.Ct. at 2227 (brackets omitted) (quoting Ward , 491 U.S. at 791, 109 S.Ct. 2746 ). The Defendants' stated justification for the IADMS—their interest in protecting residential privacy from unsolicited, harassing telephone calls—does not require reference to the content or message. Therefore, the IADMS is content neutral.

This finding is consistent with decisions from other circuits. In Van Bergen v. Minnesota , 59 F.3d 1541 (8th Cir.1995), the Eighth Circuit examined a statute similar to the IADMS.³ The court found that the Minnesota statute regulating the use of telephone ADADs was content neutral because it limited the time and manner, not the content, of the communications. Likewise, in Bland v. Fessler , 88 F.3d 729 (9th Cir.1996), the Ninth Circuit found that California statutes that regulated the use of ADADs were content neutral. The Plaintiff argues that the Court's decision should be guided by the Fourth Circuit's decision...