796 F.3d 399 (4th Cir. 2015), 14-1651, Cahaly v. Larosa

Docket Nº:14-1651, 14-1680
Citation:796 F.3d 399
Opinion Judge:DIAZ, Circuit Judge:
Party Name: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
Attorney: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. Robert D. Cook, Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South...
Judge Panel:Before WYNN, DIAZ, and THACKER, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Wynn and Judge Thacker joined.
Case Date:August 06, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 399

796 F.3d 399 (4th Cir. 2015)

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

Nos. 14-1651, 14-1680

United States Court of Appeals, Fourth Circuit

August 6, 2015

Argued: March 25, 2015.

Appeals from the United States District Court for the District of South Carolina, at Greenville. (6:13-cv-00775-JMC). J. Michelle Childs, District Judge.

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. Judge Diaz wrote the opinion, in which Judge Wynn and Judge Thacker joined.

OPINION

DIAZ, Circuit Judge:

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, 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.

I.

A.

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.

B.

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:

Please hold for a one-question survey.

As you may have heard, Speaker of the House Nancy Pelosi is coming to South Carolina.

Do you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come campaign for her? Press 1 if you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come and campaign for her. Press 2 if you think incumbent Democrat Anne Peterson Hutto should not invite her fellow Democrat Nancy Pelosi to come and campaign for her.

J.A. 219-20.

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.

J.A. 83.

The day after Cahaly placed the robocalls, an incumbent seeking reelection in one of the targeted...

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