The Federal trial judge got this one right, even though the Arkansas law had been on the books for 35 years. The question concerned whether the State could restrict political speech by robocall with the mechanism of banning political robocalls. The same statute did not ban other political calls, only robocalls, and the judge called them on that logical conflict.
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.
There’s a larger question here, too, though. Once we begin limiting political speech, where does it stop? What’s the limiting principle? What naturally limits the thing, without relying on government forbearance? One such limit mentioned in the ruling concerns signs containing political speech. The signs cannot be banned, but their placement can be restricted based on safety concerns (for instance, visually blocking views of crossing traffic at intersections). Robocalls, irritating as they are, don’t present themselves as usefully limitable, given the importance of free political speech and (incumbent) government attempts to restrict it, other than an Arkansas averred
prevent[ion of] the seizure of phone lines, which could interfere with emergency calls being placed or received.
However, as the judge noted,
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.
The State’s safety claim doesn’t hold water.
And so, again I ask, when it comes to government limiting speech, particularly political speech, where does it stop? What’s the limiting principle? Safety certainly can be one such limit, but Arkansas’ law doesn’t—didn’t—apply it.
The judge’s opinion can be seen here.