937 F.3d 1218
9th Cir.2019Background
- Montana enacted Mont. Code § 45-8-216 (1991), banning automated telephone calls completed for certain purposes, including "promoting a political campaign," with a live-operator consent exception and a civil penalty.
- Victory Processing, a Michigan political consulting and polling company that uses robocalls, sought to make political robocalls in Montana but refrained and sued under 42 U.S.C. § 1983 challenging §45-8-216(1)(e) as a First Amendment violation.
- The district court held the statute content-based, applied strict scrutiny, found Montana had a compelling interest in privacy, and upheld the statute; Victory Processing appealed.
- The Ninth Circuit considered standing and concluded Victory Processing had its own standing to sue (it alleged direct injury to its speech operations).
- Applying Reed, the Ninth Circuit held the statute is content-based; it recognized Montana’s compelling interest in home/device privacy but found the statute not narrowly tailored—both underinclusive and overinclusive—because it regulates content rather than the robocall method.
- Outcome: Ninth Circuit reversed the district court, holding §45-8-216(1)(e) violates the First Amendment and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Victory: it suffers direct chilling/injury to its own speech operations | Montana: Victory lacks third-party standing; impacts clients, not Victory | Victory has Article III standing to assert its own First Amendment injury |
| Content-based or neutral law | Victory: statute targets topics (e.g., political) — content-based | Montana: law targets method/effects of robocalls, not message | Statute is content-based under Reed; strict scrutiny applies |
| Compelling state interest | Victory: privacy interest exists but not dispositive here | Montana: protecting home/device privacy and tranquility is compelling | Court: privacy/tranquility is a compelling state interest |
| Narrow tailoring / strict scrutiny | Victory: statute is both underinclusive and overinclusive; less-restrictive, content-neutral alternatives exist | Montana: live-operator exception and topic list are tailored to harms | Statute fails narrow tailoring (underinclusive and overinclusive); does not survive strict scrutiny |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulations trigger strict scrutiny)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Carey v. Brown, 447 U.S. 455 (1980) (state interest in home privacy is of highest order)
- Frisby v. Schultz, 487 U.S. 474 (1988) (protection of the unwilling listener and residential privacy)
- Moser v. F.C.C., 46 F.3d 970 (9th Cir. 1995) (robocalls threaten privacy; method-based restrictions can be upheld)
- Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) (applying consumer-protection/commercial-speech analysis to robocalls)
- Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) (similar robocall statute held not narrowly tailored)
- United States v. Playboy Entm't Grp., Inc., 529 U.S. 803 (2000) (government must show less-restrictive alternatives inadequate for content-based limits)
- Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) (underinclusiveness can indicate viewpoint or interest-disfavoring regulation)