Indiana high court takes up 'robo' calls

Indiana high court takes up 'robo' calls

State lawsuit grew out of 2006 Hill-Sodrel race

By Lesley Stedman Weidenbener
lstedman@courier-journal.com

INDIANAPOLIS -- The future of prerecorded political calls in Indiana -- considered by some voters as pesky but by many campaigns as productive -- is in the hands of the Indiana Supreme Court.

At issue is whether a 1988 state law bans all so-called "robo" calls, which are placed by automated dialers, or is meant only for those that are commercial or sales-related.

The court will hear arguments Monday in a case that stems from calls made in 2006 by American Family Voices, a group based in Washington, D.C., during the contentious 9th Congressional District race won by Democrat Baron Hill over Republican Mike Sodrel.

The impact of the decision, though, will be felt statewide -- and could have national implications if the court finds that regulating political calls violates constitutional protections of free speech.

"The court is the only thing that stands in the way of an avalanche of unwanted, unnecessary phone calls this fall in Indiana," said state Attorney General Steve Carter, whose office sued American Family Voices for making automated calls criticizing Sodrel's record in Congress.

"It's literally something that will impact millions of consumers," Carter said. "Either there will be millions more phone calls or there will be millions of moments of privacy preserved, all depending on the outcome of this case."

But the state Republican and Democratic parties say that the calls, when used for political messages, are protected free speech. They have filed a brief in the case even though they were not parties to the original lawsuit.

"It's not up to the government to decide what modes of communication are most efficient and effective for political speech," said James Bopp, a Terre Haute attorney representing the political parties.

Campaigns and special-interest groups use robo calls for a variety of purposes -- such as sending reminders for voters to request absentee ballots or go to the polls, delivering endorsements from prominent politicians or criticizing opponents. They are far cheaper than calls made by volunteers or paid personnel.

But they have become increasingly controversial nationally as some voters complain they have been deluged. That has led some policymakers to say enough is enough.

More than a dozen states have placed limits or bans on political robo calls, according to Stateline.org, a project of the Pew Center on the States that tracks state legislation. That includes Oregon, which passed legislation this year to add political robo calls to its do-not-call list law. Pennsylvania lawmakers are considering similar legislation in the wake of a presidential primary that resulted in thousands of calls.

Kentucky bans commercial robo calls made to anyone on its do-not-call list, but the state law exempts political calls. Rep. Jimmy Higdon, R-Lebanon, introduced a bill this year to add political calls to the law, but it failed to get a hearing in committee.

"During the governor's race last year, so many people approached me and said these calls have to stop," Higdon said. "There were so many. They're annoying. They're aggravating. They come at the worst time of the day when you're at home after a hard day's work trying to enjoy family."

Congress is considering legislation that would limit the number of calls a campaign could make and when they could be made.

Shaun Dakin, founder of Citizens for Civil Discourse, said proposals to limit the calls -- rather than banning them -- are more likely to survive court challenges.

"There's pretty clear agreement across the political spectrum that any kind of outright ban of political speech is going to have the Supreme Court saying, 'No way,' " Dakin said.

That's why his group has established a registry for consumers who don't want to receive the calls. The group asks for voluntary compliance -- and has received it in a few cases -- from telemarketing companies and candidates.

"Voters should have at least the basic right of opting in or opting out of political calls," Dakin said.

In Indiana, there's more to the case, though, than just arguments about free speech and consumer rights. A dispute over what the law was originally intended to do is a factor as well.

The General Assembly passed the law in 1988, but it wasn't enforced against campaigns until 2006, when Carter wrote to the Republican and Democratic parties to warn them that it applied to political calls. The parties were frustrated but abided by the ban.

Some out-of-state special interest groups -- including American Family Voices -- did not. After six complaints from 9th District voters, Carter filed suit against American Family in Harrison Circuit Court seeking penalties of up to $5,000 for each alleged violation.

But Orange Circuit Judge Larry Blanton, who was serving as special judge in the case, ruled that the state law applied only to commercial calls. Carter appealed, and the Supreme Court agreed to take up the case directly, bypassing the Court of Appeals.

Attorneys for American Family Voices argue that the law is ambiguous because it doesn't define "message" to specify whether it applies to commercial or political calls or both.

The organization's brief, however, said that other aspects of the law -- including its placement in the part of the Indiana code that regulates trade and language that allows the calls if a live operator first discloses the kinds of goods or services the call is promoting -- make it obvious it was meant only for sales calls.

"I'm going to be arguing that the statute the attorney general is trying to use to regulate political speech wasn't designed for that purpose, that it was designed to regulate commercial speech only," said Indianapolis attorney Anthony Overholt. "The constitutional issues will only come into play, I think, if the Supreme Court were to decide that the statute does in fact reach political speech."

Carter downplayed the constitutional issue, saying that the law doesn't regulate the content of the message -- the speech itself -- just how it's delivered.

But Indiana Democratic Chairman Dan Parker said that argument could lead to bans on political television and radio commercials, Internet ads, or the distribution of fliers.

"Where would it end?" Parker said. "There are some points before an election where I'm tired of all the TV ads, but that's free speech. It's the right of a candidate to try to get their message out before an election."

Reporter Lesley Stedman Weidenbener can be reached at (317) 444-2780.