Gresham v. Rutledge, 198 F. Supp. 3d 965

Plaintiffs Victor Gresham and Conquest Communications Group, LLC are political consultants who use automated dialing systems and prerecorded messages to make political calls in Arkansas; they challenge Ark. Code Ann. § 5-63-204(a)(1) as violating the First Amendment.
The challenged statute (enacted 1981) criminalizes automated calls that convey information or solicit in connection with a political campaign; violations are misdemeanors and enforcement may be sought by the Attorney General or others.
Plaintiffs sought a preliminary injunction; the court consolidated the injunction hearing with trial, heard argument, left the record open for evidence, and then considered submitted materials.
The parties agreed the statute is content-based; the court applied strict scrutiny because the restriction targets political speech at the core of First Amendment protection.
The Attorney General defended the statute on privacy and public-safety grounds (protecting residential privacy from intrusive calls, preventing repeated intrusions, and preventing phone-line seizures that could impede emergency calls).
The court found the State failed to carry its burden under strict scrutiny (compelling interest and narrow tailoring), enjoined enforcement of the statute as applied to political campaign calls, and dismissed money damages on Eleventh Amendment grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the statute content-based and subject to strict scrutiny?	Gresham: Yes; it targets campaign-related content.	Rutledge: Agreed it is content-based.	Yes; statute is content-based and strict scrutiny applies.
Does the statute advance a compelling state interest (privacy and safety)?	Gresham: No compelling interest shown.	Rutledge: Protects residential privacy and prevents phone-line seizure (public safety).	State failed to prove a compelling interest under strict scrutiny.
Is the statute narrowly tailored (not underinclusive) and the least restrictive means?	Gresham: Statute is underinclusive and less restrictive alternatives exist (time limits, disconnect requirements, do-not-call lists).	Rutledge: Alternatives impractical; other speech channels available.	Not narrowly tailored; underinclusive and less restrictive alternatives available.
Are plaintiffs' monetary damages recoverable against the Attorney General?	Plaintiffs sought damages and injunctive relief.	Rutledge: Official-capacity suit is effectively against the State; sovereign immunity bars damages.	Damages dismissed on Eleventh Amendment grounds; injunction entered against enforcement.

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulations presumptively invalid)
R.A.V. v. St. Paul, 505 U.S. 377 (1992) (content-based restrictions are presumptively invalid)
Burson v. Freeman, 504 U.S. 191 (1992) (strict scrutiny is rarely satisfied)
Playboy Entm’t Grp., Inc. v. United States, 529 U.S. 803 (2000) (government bears burden to prove restriction necessary; must show no less-restrictive alternative)
City of Ladue v. Gilleo, 512 U.S. 43 (1994) (signs are protected speech but subject to distinct regulatory problems)
Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015) (similar robocall statute struck down as underinclusive and not narrowly tailored)
Kirkeby v. Furness, 92 F.3d 655 (8th Cir. 1996) (residential privacy is substantial but not shown to be a compelling interest)
281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014) (political speech is core First Amendment protection)