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MONTH-IN-BRIEF (Oct 2019)

Business Litigation

Robocalls Are Fair Game in Montana

By Peter W. Mueller, Greensfelder, Hemker & Gale, P.C.

The Ninth Circuit evaluated the constitutionality of Montana’s regulation of political speech this past September and struck down the state’s robocall statute as unconstitutional. The case, Victory Processing, LLC v. Fox, 937 F.3d 1218 (9th Cir. 2019), involved a political consulting company’s desire to call Montana residents with robotic political messages and polls. The problem for the company, Victory Processing, LLC, was that a 1991 statute made it a punishable offense to robocall Montana residents for political purposes (and others, including commercial purposes). Victory Processing argued that Montana’s law violated its right to free speech and won.

Restrictions on the content of speech are subject to strict scrutiny analysis (unlike restrictions on the time, place, and manner of speech, which are held to a lower standard). Montana’s law restricted content because it explicitly targeted speech involving politics. This made the degree of difficulty significantly higher for Montana. Under strict scrutiny, the law could only survive if Montana proved that it was narrowly tailored to further a compelling state interest.

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