State Supreme Court’s robo-calls ruling carries over to federal lawsuit

A ruling by the Indiana Supreme Court upholding the state’s automated phone call ban has found its way into the briefing of a federal appeal challenging the same statute, and the attorneys disagree on whether the state justices adequately addressed a First Amendment issue.

The 7th Circuit Court of Appeals is considering the case of Patriotic Veteran, Inc. v. State of Indiana, No. 11-32-65, filed by the state attorney general’s office after U.S. Judge William Lawrence in Indianapolis blocked enforcement of Indiana Code 24-5-14-1, known as the Indiana Automatic Dialing Machine Statute. The appellate court decided in late December to allow the state to enforce the ban while appeal is pending on that case, which specifically focuses on whether the Indiana statute is pre-empted by a more lenient federal law involving out-of-state robo-calls.

But adding a wrinkle to that litigation is a separate state court decision Dec. 29 in the case of State of Indiana v. Economic Freedom Fund, FreeEats.com, et al., No. 07S00-1008-MI-411. The decision by the Indiana Supreme Court involves a Brown Circuit case that began in 2006 when automated phone messaging operator FreeEats.com sought to overturn the law banning unsolicited calls with automated messages. Justice Steven David wrote for the 4-1 court that the live-operator requirement does not violate free speech rights or the right to participate in political speech under the Indiana Constitution.

In its opinion, the majority noted that the trial court didn’t address the First Amendment question because it was not before the court. But the justices still stated why they believe that First Amendment argument is likely to fail. They relied on an 8th Circuit Court of Appeals decision from 1995 to find the Indiana statute is content-neutral and that the restriction on speech is made through private channels to reach private residences.

A day after the state court decision, attorneys in the Patriotic Veterans suit filed a notice of supplemental authority and noted that the Indiana Supreme Court only reviewed the law under the test applied by Article 1, Section 9 of the Indiana Constitution and “expressly refused to determine whether the ADMS violated the First Amendment of the federal constitution.”

Attorney Paul Jefferson with Barnes & Thornburg pointed to lone-dissenter Justice Frank Sullivan’s 15-page opinion which indicated Sullivan believes the state statute isn’t narrowly tailored and conflicts with Supreme Court of the United States precedent. Jefferson also noted that the state ruling isn’t final until it’s certified, after a possible rehearing request deadline is past.

In a letter filed with the 7th Circuit on Wednesday, the attorney general’s office argues that the state justices did adequately address the federal question even though it wasn’t officially before them.

“Although the Indiana Supreme Court initially suggested that the First Amendment claim was not properly before it, it nonetheless analyzed that claim and ultimately held it was ‘likely to fail’,” the AG’s letter states. “The Economic Freedom Fund decision thus squarely supports the State’s First Amendment arguments in this matter. Furthermore, though that decision was rendered at the preliminary injunction stage, the Indiana Supreme Court left no room for further evidentiary submissions to yield a different result.”