Victory Processing, LLC v. Tim Fox ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORY PROCESSING, LLC; DAVE No. 18-35163
DISHAW,
Plaintiffs-Appellants, D.C. No.
6:17-cv-00027-
v. CCL
TIM FOX, in his official capacity as
Attorney General for the State of OPINION
Montana,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted March 7, 2019
Seattle, Washington
Filed September 10, 2019
Before: Ronald M. Gould and Richard A. Paez, Circuit
Judges, and Janis Graham Jack, * District Judge.
Opinion by Judge Paez
*
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
2 VICTORY PROCESSING V. FOX
SUMMARY **
Civil Rights
The panel reversed the district court’s grant of summary
judgment in favor of the Attorney General of Montana and
remanded in an action alleging that Montana’s Robocall
Statute, Montana Code section 45-8-216(1)(e), which
restricts automated telephone calls promoting a political
campaign or any use related to a political campaign, violates
the First Amendment.
The panel explained that regulating robocalls based on
the content of their messaging presents a more severe threat
to First Amendment freedoms than regulating their time,
place, and manner. In particular, prohibiting political
robocalls strikes at the heart of the First Amendment, as well
as disproportionately disadvantages political candidates with
fewer resources.
The panel held that plaintiff had standing to challenge
the Robocall Statute. The panel noted that as an integral part
of its operations, plaintiff engages in political consulting and
public opinion polling primarily through the use of
automated telephone calls. Plaintiff alleged that it had
sustained injury, the injury was traceable to the Robocall
Statute, and the relief plaintiff sought would redress its own
alleged injuries.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VICTORY PROCESSING V. FOX 3
The panel determined that because Montana’s Robocall
Statute was plainly content-based, strict scrutiny applied.
The panel held that Montana demonstrated a compelling
state interest—protecting personal privacy—in regulating
automated telephone calls. The panel held, however, that the
Robocall Statute was not narrowly tailored to further the
state’s interest in protecting privacy. The panel held that the
statute was both underinclusive and overinclusive. It was
underinclusive because by singling out only five topics of
robocalling for regulation—including messages related to
political campaigns—the Robocall Statute left consumers
open to an unlimited proliferation of robocalls on other
topics. The statute was overinclusive because robocalls
related to political campaigns had not been shown to pose a
threat to individual privacy. The panel concluded that the
Robocall Statute’s restriction on political messages did not
survive strict scrutiny.
COUNSEL
Blake E. Johnson (argued) and Katherine J. Spohn, Bruning
Law Group, Lincoln, Nebraska; James E. Brown, The James
Brown Law Office PLLC, Helena, Montana; for Plaintiffs-
Appellants.
Patrick M. Risken (argued), Assistant Attorney General;
Timothy C. Fox, Attorney General; Office of the Attorney
General, Helena, Montana; for Defendant-Appellee.
4 VICTORY PROCESSING V. FOX
OPINION
PAEZ, Circuit Judge:
We must decide whether Montana Code section 45-8-
216(1)(e)—which restricts automated telephone calls
promoting a political campaign or any use related to a
political campaign—violates the First Amendment. We
hold that it does.
Although automated telephone calls, or robocalls, fall
within the First Amendment’s protection, they are subject to
regulation—and for good reason. In 2018, studies estimated
that Americans received between 25 and 40 billion
robocalls—a 45 to 60% increase from the prior year. 1 Most
of these robocalls cause only harmless annoyances. Some
are even useful, such as automated appointment or payment
reminders. At their worst, though, robocalls provide a cheap
vehicle for scammers masquerading as the Internal Revenue
Service, banks, or utility providers; promising nonexistent
preapproved loans or loan forgiveness; and more—aiming to
finagle money and sensitive information from unsuspecting
consumers. See Tara Siegel Bernard, Yes, It’s Bad.
Robocalls, and Their Scams, Are Surging., N.Y. Times,
1
See Kate Fazzini, Robocalls Jumped 60 Percent in the U.S. Last
Year and Scammers Are Finding More Ways to Make Money, CNBC,
Jan. 4, 2019, https://www.cnbc.com/2019/01/02/as-robo-calling-ramps-
up-consumers-increasingly-wonder-why-carriers-cant-stop-scammers-
from-spoofing-their-phone-numbers.html; Paige Leskin & Prachi
Bhardwaj, Americans Were Hit with 26.3 Billion Robocalls in 2018, a
Whopping 46% Increase from the Year Before—Here Are Some Ways to
Stop Them, May 2, 2019, http://www.businessinsider.com/how-to-stop-
robocalls-to-cell-phone-explained-2018-5.
VICTORY PROCESSING V. FOX 5
May 6, 2018, http://www.nytimes.com/2018/05/06/your-
money/robocalls-rise-illegal.html.
That robocalls are subject to regulation does not remove
them from the First Amendment’s protection, however. We
have heard numerous First Amendment challenges to laws
regulating robocalls. See Gomez v. Campbell-Ewald Co.,
768 F.3d 871, 876–77 (9th Cir. 2014); Bland v. Fessler,
88 F.3d 729, 732–36 (9th Cir. 1996); Moser v. F.C.C.,
46 F.3d 970, 973–75 (9th Cir. 1995). We have upheld
statutes that regulate the method rather than the content of
robocalls as reasonable time, place, and manner restrictions.
See, e.g., Moser, 46 F.3d at 973–75. We have further upheld
the application of state consumer protection laws to
robocalls as acceptable regulation of commercial speech.
See Bland, 88 F.3d at 738–39. We have not had the occasion
to evaluate the constitutionality of a content-based
regulation of robocalls until now.
Regulating robocalls based on the content of their
messaging presents a more severe threat to First Amendment
freedoms than regulating their time, place, and manner. In
particular, prohibiting political robocalls strikes at the heart
of the First Amendment, CarePartners, LLC v. Lashway,
545 F.3d 867, 877 (9th Cir. 2008), as well as
disproportionately disadvantages political candidates with
fewer resources. As we discuss below, Montana’s content-
based restrictions on robocalls cannot survive strict scrutiny.
We thus reverse the district court’s grant of summary
judgment to the defendant, Tim Fox in his official capacity
as Attorney General of the State of Montana.
I.
In the early 1990s, the federal and state governments
sought to address the widespread concern over computerized
6 VICTORY PROCESSING V. FOX
telephone calls that were tying up phone lines, even after the
recipient hung up the phone, and filling up answering
machines. The federal government passed the Telephone
Consumer Protection Act in 1991 (“TCPA”), 42 U.S.C.
§ 227, while states followed with their own enactments for
addressing the problems caused by robocalls. In 1991, the
Montana legislature enacted Montana Code section 45-8-
216 (hereinafter “Robocall Statute”), which provides in
subsection (1) that:
(1) A person may not use an automated
telephone system, device, or facsimile
machine for the selection and dialing of
telephone numbers and playing of recorded
messages if a message is completed to the
dialed number for the purpose of:
(a) offering goods or services for sale;
(b) conveying information on goods or
services in soliciting sales or purchases;
(c) soliciting information;
(d) gathering data or statistics; or
(e) promoting a political campaign or any
use related to a political campaign.
Although the Robocall Statute prohibits unsolicited
automated calls that fall into these categories, the statute
further provides in subsection (2) that “[t]his section does
not prohibit the use of an automated telephone system or
device if the permission of the called party is obtained by a
VICTORY PROCESSING V. FOX 7
live operator before the recorded message is delivered.” 2 Id.Those who violate the Robocall Statute are subject to up to
a $2,500 fine. Id.Victory Processing is a limited liability company formed
under the laws of Michigan and headquartered in Michigan.
Victory Processing offers its clients political consulting and
data gathering services throughout the United States. To
communicate political messages and collect public opinion
data on a variety of issues, Victory Processing primarily uses
automated telephone calls, or “robocalls.”
Victory Processing seeks to communicate political
messages and conduct public opinion polling for clients
through automated telephone calls to Montana voters
without using a live voice. After consulting with legal
counsel, however, Victory Processing refrained from
engaging in these activities in Montana because such
2
Subsection 2 provides in full:
This section does not prohibit the use of an automated
telephone system, device, or facsimile machine
described under subsection (1) for the purposes of
informing purchasers of the receipt, availability for
delivery, delay in delivery, or other pertinent
information on the status of any purchased goods or
services, of responding to an inquiry initiated by any
person, or of providing any other pertinent information
when there is a preexisting business relationship. This
section does not prohibit the use of an automated
telephone system or device if the permission of the
called party is obtained by a live operator before the
recorded message is delivered.
Mont. Code § 45-8-216(2).
8 VICTORY PROCESSING V. FOX
activities would violate the Robocall Statute. Victory
Processing, however, desires to use robocalls to engage in
political speech in Montana in the future.
Alleging that Montana’s Robocall Statute has limited its
ability to communicate with Montana voters and chilled its
speech, Victory Processing filed this suit under 42 U.S.C.
§ 1983 against Tim Fox in his official capacity as the
Attorney General of Montana (hereinafter referred to as
“Montana”). In its complaint, Victory Processing alleges
that subsection (1)(e) of Montana’s Robocall Statute violates
the First Amendment, facially and as-applied, 3 as an invalid
content-based restriction on speech. Victory Processing
seeks declaratory and injunctive relief.
On cross-motions for summary judgment, the district
court granted summary judgment to Montana. See Victory
Processing, LLC v. Fox, 307 F. Supp. 3d 1109, 1121 (D.
Mont. 2018). The district court expressed concern that
Victory Processing had provided “only a thin basis for
standing,” noting that Victory Processing had not provided
many details about the campaigns it sought to undertake in
Montana, citing client confidentiality. Id. at 1113.
Nonetheless, the district court concluded that constitutional
standing existed and proceeded to the merits of the cross-
motions for summary judgment. Id. at 1113–14.
Concluding that the Robocall Statute was content-based, the
district court applied strict scrutiny. Id. at 1116–17, 1119
(“There can be no doubt that Montana’s robocall statute is
content-based.”). The district court held that Montana had a
3
Victory Processing appears to have since abandoned its as-applied
challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(“[A]rguments not raised by a party in its opening brief are deemed
waived.”).
VICTORY PROCESSING V. FOX 9
compelling interest in regulating automated telephone calls
to “protect[] the well-being, tranquility, and privacy of the
home,” and that the Robocall Statute was narrowly tailored
to serve this interest. Id. at 1114, 1120–21. Accordingly,
the district court concluded that Montana Code section 45-
8-216(1)(e) survived strict scrutiny. Id. at 1121. Victory
Processing timely appealed. 4
II.
We first address Montana’s contention that Victory
Processing lacks standing to challenge the state’s Robocall
Statute. Montana contends that the Robocall Statute affects
the speech of Victory Processing’s clients, but that Victory
Processing has not demonstrated standing to sue on behalf
of these third parties. We must decide this jurisdictional
question before we can reach the merits. 5
4
In 2018, Victory Processing filed a similar First Amendment facial
challenge to the Wyoming statute upon which the Montana Robocall
Statute is based. See Wy. Stat. Ann. § 6-6-104. In that case, the District
Court of Wyoming applied strict scrutiny and concluded that Wyoming’s
Robocall Statute was neither justified by a compelling state interest nor
narrowly tailored to advance that interest. Victory Processing, LLC v.
Michael, 333 F. Supp. 3d 1263, 1271–72 (D. Wy. 2018).
5
Victory Processing argues that the issue of standing is not properly
before us because Montana did not raise the issue through a cross-appeal.
It is true that, in general, a prevailing party may not assert an argument
that would modify the judgment absent a cross-appeal. See Ball v.
Rodgers, 492 F.3d 1094 (9th Cir. 2007). Where standing—and thus
federal court jurisdiction—is in question, however, this rule does not
apply. See, e.g., Big Country Foods, Inc. v. Bd. of Educ. of Anchorage
Sch. Dist., 952 F.2d 1173, 1176 (9th Cir. 1992) (finding that this court
“must consider the standing issue,” even absent a cross-appeal). Thus,
because “[s]tanding is a necessary element of federal-court
jurisdiction[,]” we address the issue. Id.10 VICTORY PROCESSING V. FOX
Article III of the Constitution limits federal jurisdiction
to cases and controversies. U.S. Const. art. III, § 2, cl. 1.
“One of the essential elements of a legal case or controversy
is that the plaintiff have standing to sue.” Trump v. Hawaii,
138 S. Ct. 2392, 2416 (2018). A plaintiff must establish the
“irreducible minimum” of standing: an “injury in fact” that
is “fairly traceable” to the defendant’s actions and “likely . . .
[to] be redressed by a favorable decision.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal
quotation marks and alterations omitted). Additionally, a
plaintiff’s claim must be “sufficiently individualized to
ensure effective judicial review.” See Get Outdoors II, LLC
v. City of San Diego, 506 F.3d 866, 891 (9th Cir. 2007); see
also Warth v. Seldin, 422 U.S. 490, 509 (1975) (holding that
litigants generally cannot “assert[] the rights or legal
interests of others in order to obtain relief from injury to
themselves”).
Montana’s dispute with Victory Processing’s standing is
based on the premise that Victory Processing’s First
Amendment claim rests on the rights of its clients, rather
than its own. This premise misreads Victory Processing’s
allegations and ignores its ability to assert standing on its
own behalf. See RK Ventures, Inc. v. City of Seattle,
307 F.3d 1045, 1057 n.7 (9th Cir. 2002) (“That [a plaintiff]
is a corporation has no bearing on its standing to assert
violations of the first and fourteenth amendments under
42 U.S.C. § 1983.” (internal quotation marks and citation
omitted)). As an integral part of its operations, Victory
Processing engages in political consulting and public
opinion polling primarily through the use of automated
telephone calls. Some of this information gathering is for
Victory Processing’s own use while some is for the benefit
of paying clients. Because of the restriction on political
robocalls, Victory Processing alleges that it has been unable
VICTORY PROCESSING V. FOX 11
to convey political messages to voters through automated
telephone calls, despite its desire to do so.
In its complaint and throughout this litigation, Victory
Processing has only sought to vindicate its own First
Amendment rights, not the rights of its clients. In pursuit of
that objective, Victory Processing alleges that it has
sustained injury; the injury is traceable to the Robocall
Statute; and the relief Victory Processing seeks would
redress its own alleged injuries. Victory Processing has thus
demonstrated standing on its own behalf. 6 See Lujan,
504 U.S. at 561–62; see also Bland v. Fessler, 88 F.3d 729,
736–38 (9th Cir. 1996). Accordingly, we exercise
jurisdiction pursuant to 28 U.S.C. § 1291, and reach the
merits of this case.
III.
We review de novo the constitutionality of Montana’s
Robocall Statute. Moser v. F.C.C., 46 F.3d 970, 973 (9th
Cir. 1995). As a preliminary matter, we must decide what
level of scrutiny to apply.
The level of scrutiny we apply to laws regulating speech
varies depending on whether the law is content-based or
content-neutral. “Content-based laws—those that target
speech based on its communicative content—are
presumptively unconstitutional and may be justified only if
the government proves that they are narrowly tailored to
serve compelling state interests.” Reed v. Town of Gilbert,
135 S. Ct. 2218, 2226 (2015). Content-neutral laws, on the
6
Victory Processing need not wait for Montana to enforce its
Robocall Statute against it in order to bring a First Amendment claim on
its own behalf. See Lopez v. Candaele, 630 F.3d 775, 785–88 (9th Cir.
2010); LSO, Ltd. v. Stroh, 204 F.3d 1146, 1154–56 (9th Cir. 2000).
12 VICTORY PROCESSING V. FOX
other hand, are subject to lesser scrutiny and can be justified
as time, place, and manner restrictions. See Clark v. Cmty.
for Creative Non-Violence, 468 U.S. 288, 293 (1984).
A law can be content-based in one of two ways. Reed,
135 S. Ct. at 2227. The most commonsense way a law can
be content-based is if it distinguishes particular speech based
on the topic discussed, viewpoint or idea expressed, or, more
subtly, the function or purpose of the speech. Id. at 2227.
Such a law is content-based because it explicitly draws
distinctions based on the message a speaker conveys. Id.The law’s purpose will not alter the level of scrutiny: “A law
that is content based on its face is subject to strict scrutiny
regardless of the government’s benign motive, content-
neutral justification or lack of ‘animus toward the ideas
contained’ in the regulated speech.” Id. at 2228.
A law need not draw explicit distinctions to be content-
based, however. Id. at 2227. Even a law that appears
“facially content neutral” may be content-based if it cannot
be justified without reference to the content of the regulated
speech or if it was adopted because the government
disagreed with the message the regulated speech conveyed.
Id. For example, in United States v. Swisher, we found a
statute that criminalized wearing unauthorized military
medals to be content-based not because it explicitly
distinguished between types of speech, but rather because it
could not be justified without reference to the message
communicated by the regulated conduct. 811 F.3d 299, 312–
13 (9th Cir. 2016).
Here, Montana’s Robocall Statute is plainly content-
based. Under the Robocall Statute, a person cannot use an
automated telephone system “for the purpose of: (a) offering
goods or services for sale; (b) conveying information on
goods or services in soliciting sales or purchases;
VICTORY PROCESSING V. FOX 13
(c) soliciting information; (d) gathering data or statistics; or
(e) promoting a political campaign or any use related to a
political campaign.” Mont. Code Ann. § 45-8-216(1). The
law explicitly targets certain speech for regulation based on
the topic of that speech; accordingly, we must apply strict
scrutiny. See Reed, 135 S. Ct. at 2227. Even if these
distinctions could be substantiated with content-neutral
justifications—as the district court suggested—it would not
change the level of scrutiny we must apply. See id. at 2228.
Thus, in order for the Robocall Statute’s restriction on
political speech to survive strict scrutiny, Montana must
demonstrate that the law is justified by a compelling interest
and is narrowly tailored to further that interest. Id. at 2231.
A.
First, we must decide whether Section 45-6-216(1)(e) is
justified by a compelling state interest. There can be no
doubt that “[t]he State’s interest in protecting the well-being,
tranquility, and privacy of the home is certainly of the
highest order in a free and civilized society.” Carey v.
Brown, 447 U.S. 455, 471 (1980). “One important aspect of
residential privacy is protection of the unwilling listener.”
Frisby v. Schultz, 487 U.S. 474, 484 (1988). Although, in
many public locations, individuals are expected to avoid
speech they do not wish to hear, “individuals are not required
to welcome unwanted speech into their own homes and []
the government may protect this freedom.” Id. at 485.
Congress sought to do just that when it passed the TCPA,
42 U.S.C. § 227. In the 1990s, Congress was concerned that
unsolicited automated calls—predominantly to landline
telephones—were invading individuals’ homes and tying up
their phone lines. In Moser, we noted the “significant
evidence before Congress of consumer concerns about
telephone solicitation in general and about automated calls
14 VICTORY PROCESSING V. FOX
in particular,” leading us to “conclude that Congress
accurately identified automated telemarketing calls as a
threat to privacy” and thus had a significant interest in
restricting these calls. 46 F.3d at 974.
We have not only reaffirmed this conclusion, but we also
have held that this interest in protecting privacy justifies
applying the TCPA to cellular devices. We have never held
that the interest in privacy ends at one’s home. See Gomez
v. Campbell-Ewald Co., 768 F.3d 871, 876–77 (9th Cir.
2014). Indeed, cellular phones have become such critical
fixtures in everyday life that they often serve as the primary
phone used in the home as well as the device holding an
individual’s most sensitive data. Id.; cf. also Riley v.
California, 573 U.S. 373, 393–96 (2014); United States v.
Cotterman, 709 F.3d 952, 966 (9th Cir. 2013). Thus, the
interest in protecting privacy applies with equal force to
cellular devices.
In enacting the Robocall Statute, Montana sought to
protect a person’s personal privacy as well as privacy at
home. The sponsor of the Robocall Statute in the Montana
House of Representatives observed that automated calls had
been tying up residential phone lines, answering machines,
and fax machines. Proponents emphasized individuals’ right
of privacy and argued that “this [Robocall Statute] supports
that.” Montana continues to emphasize that its Robocall
Statute serves a compelling interest in protecting the privacy
and tranquility of its residents. Considering that this interest
is “of the highest order,” Carey, 447 U.S. at 471, and that we
have recognized that robocalls directly threaten this interest,
Moser, 46 F.3d at 974, we conclude that Montana has
VICTORY PROCESSING V. FOX 15
demonstrated a compelling state interest in regulating
automated telephone calls. 7
B.
Our inquiry does not end here, however. We must next
decide whether the Robocall Statute is narrowly tailored to
advance Montana’s compelling interest. “A statute is
narrowly tailored if it targets and eliminates no more than
the exact source of the ‘evil’ it seeks to remedy.” Frisby,
487 U.S. at 485. If a less restrictive alternative would serve
the state’s compelling interest with the same level of
effectiveness, the state must use that alternative. See United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813
(2000). Furthermore, when the plaintiff offers “a plausible,
less restrictive alternative . . . to a content-based speech
restriction, it is the Government’s obligation to prove that
the alternative will be ineffective to achieve its goals.” Id.
at 816. To meet this burden, the state must provide “more
than anecdote and supposition;” it must point to evidence in
the legislative record or present other evidence that
demonstrates why the challenged restriction, rather than a
less restrictive alternative, is necessary to further its
significant interests. Id. at 820–22.
While narrow tailoring requires that a statute not cover
more speech than is necessary to serve a compelling
government interest, a statute can also fail strict scrutiny if it
covers too little speech. “Underinclusivity creates a First
Amendment concern when the State regulates one aspect of
7
Victory Processing seeks to distinguish the protection of individual
privacy as a significant governmental interest, but not a compelling one.
This distinction is unpersuasive. We recognize the protection of
individual privacy as an interest “of the highest order,” and it is thus both
significant and compelling. Carey, 447 U.S. at 471.
16 VICTORY PROCESSING V. FOX
a problem while declining to regulate a different aspect of
the problem that affects its stated interest in a comparable
way.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1670
(2015) (emphasis in original). While we do not require the
government to address all aspects of a problem in one fell
swoop, an underinclusive restriction “can raise doubts about
whether the government is in fact pursuing the interest it
invokes, rather than disfavoring a particular speaker or
viewpoint.” Id. at 1668 (internal quotation marks omitted);
see also Reed, 135 S. Ct. at 2231. Additionally,
underinclusivity may show that the law does not in fact
advance the state’s compelling interest. See Williams-Yulee,
135 F.3d at 1668.
Although we have not yet addressed whether a content-
based regulation of robocalls is narrowly tailored to protect
individual privacy, the Fourth Circuit recently addressed this
question in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015).
There, the Fourth Circuit addressed a First Amendment
challenge to South Carolina code section 16-17-446(A),
which prohibited all consumer and political robocalls subject
to limited exceptions. Id. at 402–03. Applying strict
scrutiny, the Fourth Circuit held that although South
Carolina’s interest in protecting privacy was compelling,
section 16-17-446(A) was not narrowly tailored to serve that
interest. Id. at 405. Rather, the Fourth Circuit held that the
challenged statute was both overinclusive and
underinclusive. Id. at 406. The South Carolina statute was
overinclusive because federal “[c]omplaint statistics show
that unwanted commercial calls are a far bigger problem
than unsolicited calls from political or charitable
organizations.” Id. Additionally, the statute was
underinclusive because it permitted “unlimited
proliferation” of all robocalls that are not political or
commercial. Id.
VICTORY PROCESSING V. FOX 17
We similarly hold that section 45-8-216(1)(e) is not
narrowly tailored to further the state’s interest in protecting
privacy. Notably, according to the Montana State
Legislature, the privacy threat posed by robocalls relates to
the methods or effects of robocalls—the fact that they tie up
phone lines and fill answering machines—rather than their
content. Accordingly, regulating robocalls based on their
content does not address Montana’s expressed concerns.
Montana argues that “the method of delivery, not the
message, is the target” of the Robocall Statute, emphasizing
that the law does not entirely prohibit robocalls, but rather
requires that a live operator announce the message for five
enumerated topics. See Mont. Code § 45-8-216(2). Even
with the live operator exception, Montana nonetheless seeks
to address problems caused by robocalls by distinguishing
based on the content of the calls. 8 See id.
If Montana’s quarrel with robocalling is indeed with the
method, rather than the content, of the calls, then its
Robocall Statute is underinclusive. By singling out only five
topics of robocalling for regulation—including messages
related to political campaigns—the Robocall Statute leaves
consumers open to an “unlimited proliferation” of robocalls
on other topics. See Cahaly, 796 F.3d at 406. Although
Montana argues that “virtually every conceivable subject of
calling is covered,” there are many categories of robocalls
8
If Montana had required all robocalls to be announced by a live
operator, rather than imposing this requirement based on the topic of the
robocall, our analysis may be different. California, for example, has
addressed similar concerns about robocalls by requiring a live operator
to obtain the consent of the person they call before playing a recorded
message, regardless of the content of the message. See California Pub.
Util. § 2874. Because this regulation was content-neutral, we did not
apply strict scrutiny and concluded that the statute was constitutional.
Bland, 88 F.3d at 733, 739.
18 VICTORY PROCESSING V. FOX
that Montana’s Robocall Statute does not cover, such as
those related to government services, medical information,
or charitable solicitations. Montana has offered no reason
why, for example, an automated fundraising call from a
political campaign is inherently more intrusive than a similar
automated fundraising call from an apolitical nonprofit
entity—both would tie up phone lines and answering
machines in the exact same manner. This
underinclusiveness raises doubts about whether the Robocall
Statute aims to address the problems caused by robocalling
or instead to hinder discussion of certain topics.
Even assuming that political messages and the other four
topics regulated by the Robocall Statute pose a greater threat
to privacy that justifies singling them out, Montana has not
presented evidence to this effect. Indeed, available evidence
does not support this conclusion. In passing the TCPA,
Congress identified that “unwanted commercial calls are a
far bigger problem than unsolicited calls from political or
charitable organizations.” H.R. Rep. 102-317 at 16, 102nd
Cong. (1st Sess. 1991). More up-to-date research suggests
that robocall scams pose one of the biggest threats to
consumers, constituting 40% of all robocalls. See Fazini,
supra; The FFC’s Push to Combat Robocalls & Spoofing,
Fed. Commc’n Comm’n, http://www.fcc.gov/about-fcc/fcc-
initiatives/fccs-push-combat-robocalls-spoofing (last visited
June 1, 2019). Robocalls related to political campaigns, by
contrast, have not been shown to pose a threat to individual
privacy. By regulating categories of robocalling that have
not been shown to pose a threat, the Robocall Statute is
overinclusive in its efforts to further Montana’s compelling
interest in protecting privacy.
In regulating the content of robocalls by restricting
political speech, rather than their method, in a way that is
VICTORY PROCESSING V. FOX 19
both underinclusive and overinclusive, section 45-8-
216(1)(e) is not narrowly tailored to address the State’s
compelling governmental interests. Thus, the Robocall
Statute’s restriction on political messages does not survive
strict scrutiny.
IV.
For the reasons stated above, we reverse the district
court’s grant of summary judgment to Fox and remand for
further proceedings consistent with this Opinion.
REVERSED and REMANDED.