Victor Gresham v. Lori Swanson
866 F.3d 853
8th Cir.2017Background
- Victor Gresham, a political consultant and managing member of Conquest Communications Group, uses automated political robocalls and challenged Minn. Stat. § 325E.27 as violating the First Amendment.
- § 325E.27 generally bans robocalls unless the subscriber has consented or a live operator obtains consent; subsection (b) exempts calls from school districts, callers with a current business/personal relationship, employee work-schedule calls, and a 2009-added charitable clothing-donation exception.
- Gresham argued subsection (b) creates speaker- and content-based preferences that disfavor his political robocalls and thus must trigger strict scrutiny.
- The district court denied a preliminary injunction, relying on this circuit’s Van Bergen decision that treated the relationship-based exceptions as content-neutral time, place, and manner regulations; the court severed the 2009 charitable exception.
- On appeal the Eighth Circuit panel affirmed, holding Van Bergen still controls and that the statute (with the charitable exception severed) is a content-neutral regulation based on implied consent rather than message content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 325E.27 is a content- or speaker-based regulation requiring strict scrutiny | Gresham: § 325E.27 favors certain speakers/content (exemptions) and disfavors his political robocalls, so it is speaker/content based | State: Exceptions are relationship-based (implied consent) and are content-neutral time, place, and manner restrictions | Held: Not content- or speaker-based after severing 2009 charitable exception; treated as content-neutral restriction (Van Bergen controls) |
| Whether Citizens United, Reed, or Tam abrogate Van Bergen | Gresham: Supreme Court decisions prohibit speaker-based distinctions and thus overrule Van Bergen | State: Van Bergen remains consistent because Minnesota’s law depends on consent, not content preference | Held: Supreme Court cases do not supersede Van Bergen in this context; Van Bergen remains dispositive |
| Whether the 2009 charitable-clothing exception invalidates the statute | Gresham: the new exception shows content preference and taints the statute | State: The charitable exception is severable under Minn. Stat. § 645.20 | Held: The charitable exception is severable; the remainder of the statute stands |
| Entitlement to preliminary injunction | Gresham: Likely to succeed on the merits because statute discriminates by speaker/content | State: Gresham unlikely to succeed; statute is constitutional as applied | Held: Denied—Gresham is unlikely to succeed, so injunction denied |
Key Cases Cited
- Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995) (upholding Minnesota robocall restrictions as relationship-based, content-neutral time/place/manner regulations)
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (speaker-based distinctions generally disfavored under the First Amendment)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (laws that favor some speakers may be content-based and demand strict scrutiny when speaker preference reflects content preference)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (government may not engage in viewpoint discrimination; concurrence highlighted dangers of disfavouring messages)
- Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303 (7th Cir. 2017) (similar state robocall law analyzed and treated as not content-based)
- Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (standard for preliminary injunction factors)