A federal district court judge has ruled that Montana’s ban on political robocalls is constitutional, although the lack of enforcement since the ban was approved in 1991 has meant Montanans still receive many of the calls each election cycle.
The ruling, issued Friday by U.S. District Court Senior Judge Charles Lovell in Helena, puts an end to a challenge filed against Montana’s law a year ago by Victory Processing LLC, a Michigan company that does political consulting and works on campaigns and ballot initiatives primarily through the use of automated telephone calls, or robocalls.
Victory Processing claimed the ban was depriving it of the right to free speech. However, Lovell found that the state law prohibiting robocalls is a “constitutionally permissible content-based regulation of speech.”
Lovell’s ruling focused on privacy concerns raised by robocalls, writing:
“A proliferation of campaign robocalls could lead easily to a veritable arms-race of political campaign robocalls and cause the exact privacy problem that the Montana statute is designed to prevent: the annoyance and harassment of Montanans in their households — an invasion of the close.”
Attorney General Tim Fox, against whom the complaint was filed, also argued about privacy issues.
“The State's interest in protecting the well-being, tranquility and privacy of the home is certainly of the highest order in a free and civilized society,” Fox wrote.
Lovell’s ruling also said the robocalling law “still leaves ample means of communication for individuals and organizations.”
He pointed to getting permission for calls to donors and potential donors and the use of a live operator as alternatives to recorded messages. He also said campaigns have other ways of getting information out such as leafleting and pamphleting, billboards, posters, yard signs, bulk mailing, the internet and social media.
Montana law does not allow robocalls for political campaign purposes, but enforcement is another issue.
While campaign finance and practice complaints are handled by the Commissioner of Political Practices, robocalls are considered a crime and are not under the commissioner’s duties to enforce.
Instead, robocalls are in the same category as animal cruelty, defamation, concealed weapons and deviate sexual conduct, making violations enforceable through the criminal justice system if a complaint is filed in the county where the call is received.
But county attorneys have never taken it that far, even though the state has had robocalls in every election since at least 1992, the first election year the calls were illegal, according to a past opinion written by former Commissioner of Political Practices Jonathan Motl.