Cahaly v. LaRosa, Nos. 14-1651 & 14-1680 (4th Cir. Aug. 6, 2015).
South Carolina is notorious for telephone push-polls in which candidates have been not-so-subtly criticized for being Jewish or have been slandered as a “cheat” and “liar.”
Much less widely known is a South Carolina law that puts heavy restrictions on robocalls soliciting the sale of consumer goods and services. The law also prohibits unsolicited robocalls “of a political nature,” including “calls relating to political campaigns.” (To be clear, I don’t know whether South Carolina’s history of dubious push-polls and its anti-robocall law have anything to do with each other.)
Here, GOP political operative Robert Cahaly arranged for robocalls asking a push-poll question that was designed to associate Democratic candidates for the South Carolina legislature with Nancy Pelosi. Cahaly was later arrested, although he wasn’t charged or prosecuted. Thereafter, Cahaly filed suit against the state, asserting that the anti-robocall law violated the First Amendment.
Relying on Reed v. Town of Gilbert, where the Supreme Court struck down a local ordinance that regulated signs based on their subject matter, the Fourth Circuit holds that the South Carolina law is unconstitutional. Like the ordinance in Reed, the anti-robocall law “makes content distinctions on its face”: it applies to political and consumer robocalls, but not to others. And because the law is content-based, it is subject to strict scrutiny, which, perhaps unsurprisingly, it does not survive.