Cahaly v. Larosa
| Citation | 796 F.3d 399 |
| Decision Date | 06 August 2015 |
| Docket Number | Nos. 14–1651,14–1680.,s. 14–1651 |
| Parties | Robert C. CAHALY, Plaintiff–Appellee, v. Paul C. LAROSA, III; Reginald I. Lloyd; South Carolina Law Enforcement Division, Defendants–Appellants. Robert C. Cahaly, Plaintiff–Appellant, v. Paul C. Larosa, III; Reginald I. Lloyd; South Carolina Law Enforcement Division, Defendants–Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED:Kenneth Paul Woodington, Davidson & Lindemann, P.A., Columbia, South Carolina, for Appellants/Cross–Appellees.Samuel Darryl Harms, III, HARMS LAW FIRM, PA, Greenville, South Carolina, for Appellee/Cross–Appellant. ON BRIEF:Robert D. Cook, Solicitor General, Office of the Attorney General, Columbia, South Carolina; William H. Davidson, II, Davidson & Lindemann, P.A., Columbia, South Carolina, for Appellants/Cross–Appellees.
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge DIAZ wrote the opinion, in which Judge WYNN and Judge THACKER joined.
Robert C. Cahaly, a self-described Republican political consultant, was arrested for alleged violations of South Carolina's anti-robocall statute. After the charges were dismissed, Cahaly filed suit, challenging the statute on three First Amendment grounds: as an unlawful regulation of speech, as impermissibly compelling speech, and as unconstitutionally vague. Cahaly also sought damages from the law enforcement officials involved in his arrest (and the agency employing them), advancing claims under 42 U.S.C. § 1983 and state law for false imprisonment and malicious prosecution.
Under the content-neutrality framework set forth in Reed v. Town of Gilbert, ––– U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), we find that the anti-robocall statute is a content-based regulation that does not survive strict scrutiny.1 We also hold that Cahaly lacks standing to bring compelled-speech and vagueness challenges, and that his other claims fail due to the presence of probable cause to arrest him. As a result, we affirm the district court's judgment except for the compelled-speech claim, which we vacate and remand with instructions to dismiss it.
In 1991, the South Carolina General Assembly enacted a statute regulating automated telephone calls that deliver recorded messages, or “robocalls.”2 This statute places different restrictions on robocalls depending on whether they are (1) unsolicited and (2) made for consumer, political, or other purposes. By definition, it prohibits only those robocalls that are “for the purpose of making an unsolicited consumer telephone call” or are “of a political nature including, but not limited to, calls relating to political campaigns.” S.C.Code Ann. § 16–17–446(A).
All qualifying robocalls are banned with three exceptions, based on the express or implied consent of the called party:
(1) in response to an express request of the person called; (2) when primarily connected with an existing debt or contract, payment or performance of which has not been completed at the time of the call; (3) in response to a person with whom the telephone solicitor has an existing business relationship or has had a previous business relationship.
Id. § 16–17–446(B). If an exception applies, the permitted robocall must “disconnect immediately when the called party hangs up”; must be made between 8:00 AM and 7:00 PM; and “may not ring at hospitals, police stations, fire departments, nursing homes, hotels, or vacation rental units.” Id. § 16–17–446(C)(2)–(4). Some permitted robocalls must also disclose certain information to the called party: “(1) the identity of the seller; (2) that the purpose of the call is to sell goods or services; [and] (3) the nature of the goods or services.” Id. §§ 16–17–445(B)(1)–(3), –446(C)(1).
Other statutory provisions contain rules for live solicitors making unsolicited consumer telephone calls. Solicitors must place their calls from 8:00 AM and 9:00 PM, make certain disclosures, and maintain a do-not-call list.Id. §§ 16–17–445(B)–(E).
A violation of the statute constitutes a misdemeanor offense. Id. § 16–17–446(D) (cross-referencing § 16–17–445(F)). A first or second conviction carries a maximum punishment of a $200 fine or 30 days in prison while a third or later conviction carries a fine of $200 to $500 or the same maximum 30 days' imprisonment. Id.
On September 23, 2010, Cahaly allegedly placed robocalls in six South Carolina house legislative districts. With the name changed to reflect the Democratic candidate in each district, the calls' prerecorded message said:
About one week before the calls were placed, an attorney with the South Carolina Office of the Attorney General told Cahaly that the anti-robocall statute did not cover “automated telephone survey polls of a political nature.” J.A. 74. The attorney encouraged him to ask a member of the state House of Representatives to seek a written opinion to that effect. A representative made that request, and the Attorney General issued a letter, the day before Cahaly made the robocalls, stating:
In the opinion of this office, organizations, such as Survey USA, may routinely conduct automated survey telephone calls for political purposes in this State that require the recipient's responses via a phone key. The purpose of the ADAD law is to prohibit the unwarranted invasion by automated dialing devices in order to promote advocacy of a “product” including a particular candidate. Thus, as long as these polling calls, even if they are of a political nature, do not advocate a particular political candidate but simply obtain a “snapshot” opinion of a voter, they may be made.
The day after Cahaly placed the robocalls, an incumbent seeking reelection in one of the targeted districts wrote to the South Carolina Law Enforcement Division (“SLED”) reporting that her constituents had received telephone calls that violated the anti-robocall statute. Over the next three weeks, Democratic candidates in the other five districts also reported to SLED that their constituents had received the same calls using their names.
On November 1, 2010, a state magistrate judge issued six warrants—one for each targeted district—for Cahaly's arrest. The election was held November 2. That same day, SLED issued a press release announcing the warrants. On November 3, Cahaly turned himself in, was booked, and was released on his own recognizance. The warrants were dismissed eighteen months later.
Cahaly filed a complaint in state court against SLED; Paul C. LaRosa, III, a special agent with SLED who completed the arrest warrant applications; and Reginald I. Lloyd, the director of SLED at the time of Cahaly's arrest (collectively, the “Defendants”). Cahaly sought a declaration that the anti-robocall statute was unconstitutional and an injunction prohibiting the Defendants from enforcing it. He also alleged a damages claim under 42 U.S.C. § 1983 and state law claims for false imprisonment and malicious prosecution.
The Defendants removed the case to federal court. Cahaly moved for partial summary judgment on his claim for declaratory and injunctive relief. The Defendants moved for summary judgment on all claims.
The district court granted Cahaly's motion, declared the anti-robocall statute unconstitutional, and issued a permanent injunction barring enforcement of the statute. The district court concluded that the statute was a content-based restriction on speech and applied strict scrutiny. Under that rubric, the court found the statute unconstitutional due to “its underinclusiveness and its singling out of commercial and political speech” when the asserted government interest was to eliminate nearly all robocalls to protect residential privacy. Cahaly v. LaRosa, 25 F.Supp.3d 817, 827 (D.S.C.2014). The court also determined that the statutory provision requiring robocalls to disclose certain identifying information was unconstitutional as compelled speech, but that Cahaly lacked standing to bring his vagueness challenge.
The district court awarded summary judgment to the Defendants on Cahaly's other claims. The court held that LaRosa and Lloyd were entitled to qualified immunity on the § 1983 claim because the right at issue was not clearly established. The court also held that the existence of probable cause to arrest Cahaly defeated his false imprisonment and malicious prosecution claims.
The Defendants appeal the district court's judgment granting declaratory and injunctive relief. Cahaly cross-appeals the district court's judgment on his damages claims. We review de novo the district court's order granting summary judgment and its ruling that a party lacks standing. Brown v. Town of Cary, 706 F.3d 294, 300 (4th Cir.2013).
We begin with Cahaly's First Amendment claim. First, we consider whether the anti-robocall statute is a content-neutral restriction on speech subject to intermediate scrutiny or a content-based restriction that must withstand strict scrutiny. We then turn to whether the statute's mandatory disclosure provision constitutes compelled speech. Lastly, we reach Cahaly's vagueness challenge. As explained below, we hold that the statute is content based and does not survive strict scrutiny, and that Cahaly lacks standing to bring his compelled-speech and vagueness challenges.
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