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A political consultant who tried to prevent enforcement of Minnesota’s anti-robocall statute on free speech grounds was stymied after a ruling by the Eighth Circuit Aug. 2 ( Gresham v. Swanson , 2017 BL 268376, 8th Cir., No. 16-3219, 8/2/17 ).
Victor Gresham alleged that because the statute exempts certain callers—such as school districts and employers—from getting permission before placing an automated phone call, it regulates speech based on its content in violation of the First Amendment.
The statute’s intent is to protect Minnesotans from disruptive calls, and those calls that are permitted are allowed “on an assumption of implied consent” not content, Judge Steven M. Colloton wrote for the U.S. Court of Appeals for the Eighth Circuit.
If there’s no implied consent, all automated calls are banned, regardless of their content, the court said.
Gresham also argued that recent U.S. Supreme Court decisions in Citizens United v. FEC, Reed v. Town of Gilbert, and Matal v. Tam undermine Eighth Circuit precedent in Van Bergen v. Minnesota, which upheld the statute’s exemptions as valid time, place, and manner restrictions.
In Citizens United, the high court held that the government can’t suppress political speech on the basis of the speaker’s corporate identity.
In Town of Gilbert, the Supreme Court held that laws that target speech based on its communicative content are presumptively unconstitutional.
And in Matal v. Tam, the high court said that the federal government can’t constitutionally withhold legal protections for trademarks seen as disparaging, throwing out a 70-year-old provision as a free-speech violation.
Justice Anthony M. Kennedy’s concurring opinion in Tam highlighted the dangers of discrimination when legislation disfavors certain speech because the government doesn’t approve of the speaker’s message and supported Gresham’s argument, he said.
But none overruled Van Bergen, which upheld Minnesota’s law because it doesn’t “prefer certain speech based on content, and does not disfavor certain ideas over others,” the Eighth Circuit said.
Because Gresham was unlikely to succeed on his First Amendment claim, the court denied his motion to prevent the statute’s enforcement.
Judges Lavenski R. Smith and Jane Kelly joined the opinion.
Winthrop & Weinstine and Holtzman & Vogel represented Gresham.
The Minnesota attorney general’s office represented the state.
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