333 F. Supp. 3d 1263
D. Wyo.2018Background
- Victory Processing, LLC (a political-data/consulting company) uses automated telephone calls (robocalls) for surveys, data gathering, and political messaging and seeks to do so in Wyoming.
- Wyoming statute Wyo. Stat. § 6-6-104 bans use of automated dialing/recorded messages for commercial offers, advertising, soliciting information, data gathering/polling, and political campaign promotion; it cross-references exceptions in Wyo. Stat. § 40-12-303.
- Victory declined or lost business opportunities and alleges a credible threat of prosecution under § 6-6-104, so it seeks declaratory and injunctive relief on First Amendment grounds.
- Parties filed cross-motions for summary judgment; the core legal questions are standing and whether the statute is content-based and unconstitutional under the First Amendment.
- The court evaluated Article III standing and prudential third-party/overbreadth standing, then analyzed whether the statute is content-based (triggering strict scrutiny) and if it survives strict scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III) | Victory has injury-in-fact from being barred and faces credible threat of prosecution | AG disputed prudential aspects but not injury | Victory has Article III standing; injury, causation, redress satisfied |
| Prudential/third-party standing (overbreadth) | Victory may challenge statute affecting others; can frame issues and has injury | AG argued ordinary third-party standing limits should apply | Under Munson framework, Victory may proceed: injury-in-fact + can satisfactorily frame issues |
| Content-based or content-neutral law | § 6-6-104 facially targets categories (including political speech) so is content-based | AG analogized to robocall laws found content-neutral (MN/IN) and invoked residential privacy interest | Court held § 6-6-104 is content-based on its face and strict scrutiny applies |
| Strict scrutiny (compelling interest / tailoring) | Victory: statute not narrowly tailored and overinclusive re: political speech | AG: statute advances residential privacy and contains exceptions (via § 40-12-303) | Court found residential privacy only a substantial (not shown compelling) interest under Tenth Circuit; statute is not narrowly tailored/overinclusive and fails strict scrutiny; statute unconstitutional |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (content-based speech triggers strict scrutiny)
- Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947 (standing in First Amendment overbreadth suits)
- Frisby v. Schultz, 487 U.S. 474 (protecting residential privacy as governmental interest)
- Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (Tenth Circuit on political-speech restrictions)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden rules)
- Sorrell v. IMS Health, Inc., 564 U.S. 552 (speech restrictions targeting content/subject matter)
- Victory Processing, LLC v. Fox, 307 F. Supp. 3d 1109 (Montana decision finding similar statute content-based)