Congressman Kuhl Co-Sponsors Legislation to Regulate Political Robo-Calls

Today, Congressman Kuhl announced that he was co-sponsoring legislation to expand the scope of the Do Not Call Registry by adding to the list politically-oriented Robo-Calls.

There is no question that this will be hugely popular with most people (including myself, who, despite all of the data shown to me indicating that these calls "increase turnout," believes they "anger voters"), but there is certainly a First Amendment issue here, and if this bill becomes law, there will definitely be a legal challenge to it.

In 2004, SCOTUS refused to hear an appeal on a Tenth Circuit decision which held that the Do Not Call Registry is a "valid commercial speech regulation" (emphasis added). The key word, of course, was "commercial," and this bill would be a limitation on "political" speech, which naturally raises far more red flags with the courts than commercial speech. However, because this regulation would be a content-neutral restriction, it would only be subject to immediate scrutiny by the courts, as opposed to a content-based restriction, which would be subject to strict scrutiny. All the government would have to do is prove that the law serves an important objective (citizens view Robo-Calls as an invasion of privacy, and we want to protect citizens), the law is narrowly tailored (only bans pre-recorded mass phone calls to individuals who sign up not to receive such calls), and there remains ample alternatives for the communication (live people making the calling, TV ads, mailers, demonstrations, etc.). Granted, that's a very simplified overview of the issues involved here, but frankly, IMHO, if the government can prove the above to the satisfaction of the courts and the law is drafted properly and would survive either a vagueness or overbreath challenge, it should pass muster with the courts, or at the very least make for extremely interesting law review articles.

In the meantime, if you don't want to continue to receive such calls, one of the easiest way to decrease the frequency of political Robo-Calls is to not put your phone number down on your voter registration application. It's listed as "optional" for a reason! Plus, by not listing your phone number on your voter registration application, you will substantially limit even live calls from a campaign, political party, 527, etc. Granted, I love volunteering to do phone banking for a campaign, but by not listing your phone number, you would save yourself from receiving a call you consider "unwanted," and I would save myself from being yelled at or hungup on. It's a win-win!