Robert Cahaly v. Paul LaRosa, III

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1651
ROBERT C. CAHALY,
Plaintiff – Appellee,
v.
PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,
Defendants – Appellants.
No. 14-1680
ROBERT C. CAHALY,
Plaintiff – Appellant,
v.
PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,
Defendants – Appellees.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:13-cv-00775-JMC)
Argued: March 25, 2015 Decided: August 6, 2015
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.
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.
2
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 (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.
1 We received supplemental briefs from the parties on the
import of Reed to the issues on appeal.
3
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
2The statute refers to robocalls as “Adad calls,” which
stands for “automatically dialed announcing device.” S.C. Code
Ann. § 16-17-446 (2014).
4
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.
5
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
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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 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.
C.
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-
7
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
8
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).
II.
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.
9
A.
The Supreme Court recently clarified the content-neutrality
inquiry in the First Amendment context. In Reed, the Court
explained that “the crucial first step in the content-neutrality
analysis” is to “determin[e] whether the law is content neutral
on its face.” 135 S. Ct. at 2228. At the second step, a
facially content-neutral law will still be categorized as
content based if it “cannot be ‘“justified without reference to
the content of the regulated speech,”’ or . . . adopted by the
government ‘because of disagreement with the message [the
speech] conveys.’” Id. at 2227 (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989)).
This formulation conflicts with, and therefore abrogates,
our previous descriptions of content neutrality in cases such as
Brown v. Town of Cary. See 706 F.3d at 303 (“[I]f a regulation
is ‘justified without reference to the content of regulated
speech,’ [citation omitted] ‘we have not hesitated to deem
[that] regulation content neutral even if it facially
differentiates between types of speech.’”) (quoting Wag More
Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 366 (4th Cir.
2012) (last alteration in original)). Our earlier cases held
that, when conducting the content-neutrality inquiry, “[t]he
government’s purpose is the controlling consideration.”
Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th
10
Cir. 2013) (quoting Ward, 491 U.S. at 791). But Reed has made
clear that, at the first step, the government’s justification or
purpose in enacting the law is irrelevant. 135 S. Ct. at 2228-
29.
Applying Reed’s first step, we find that South Carolina’s
anti-robocall statute is content based because it makes content
distinctions on its face. Reed instructs that “[g]overnment
regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea or
message expressed.” 135 S. Ct. at 2227. Here, the anti-
robocall statute applies to calls with a consumer or political
message but does not reach calls made for any other purpose.
Because of these facial content distinctions, we do not reach
the second step to consider the government’s regulatory purpose.
See id. at 2228 (“[A]n innocuous justification cannot transform
a facially content-based law into one that is content neutral.”)
As a content-based regulation of speech, the anti-robocall
statute is subject to strict scrutiny. Id. at 2231. Under this
standard, the government must prove “that the restriction
furthers a compelling interest and is narrowly tailored to
achieve that interest.” Id. (quoting Ariz. Free Enter. Club’s
Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)). “If
a less restrictive alternative would serve the [g]overnment’s
purpose, the legislature must use that alternative.” United
11
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
Moreover, the restriction cannot be overinclusive by
“unnecessarily circumscrib[ing] protected expression,”
Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002)
(quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)), or
underinclusive by “leav[ing] appreciable damage to [the
government’s] interest unprohibited,” Reed, 135 S. Ct. at 2232
(quoting White, 536 U.S. at 780).
The asserted government interest here is to protect
residential privacy and tranquility from unwanted and intrusive
robocalls. Assuming that interest is compelling, we hold that
the government has failed to prove that the anti-robocall
statute is narrowly tailored to serve it. Plausible less
restrictive alternatives include time-of-day limitations,
mandatory disclosure of the caller’s identity, or do-not-call
lists. See Maryland v. Universal Elections, Inc., 729 F.3d 370,
376 (4th Cir. 2013) (evaluating the federal Telephone Consumer
Protection Act’s identity disclosure requirement); Nat’l Fed’n
of the Blind v. F.T.C., 420 F.3d 331, 333-34 (4th Cir. 2005)
(examining a federal regulation that “requires callers to make
certain disclosures, refrain from making late-night, early-
morning, and ‘abandoned calls’ (calls followed by silence), and
comply with a . . . ‘do-not-call list’”); Van Bergen v.
Minnesota, 59 F.3d 1541, 1551 (8th Cir. 1995) (considering
12
Minnesota’s ban on robocalls from 9 PM to 9 AM). The government
has offered no evidence showing that these alternatives would
not be effective in achieving its interest.
In addition, the record contains evidence that the anti-
robocall statute is overinclusive. The Defendants themselves
cite to a report from a U.S. House of Representatives committee
that concluded, “Complaint statistics show that unwanted
commercial calls are a far bigger problem than unsolicited calls
from political or charitable organizations.” H.R. Rep. 102-317,
at 16 (1991). Yet the statute also targets political calls.
At the same time, the statute suffers from
underinclusiveness because it restricts two types of robocalls--
political and consumer--but permits “unlimited proliferation” of
all other types. Reed, 135 S. Ct. at 2231; see id. (“The Town
cannot claim that placing strict limits on temporary directional
signs is necessary to beautify the Town while at the same time
allowing unlimited numbers of other types of signs that create
the same problem.”).
Because the statute does not pass muster under strict
scrutiny, we affirm the district court’s judgment declaring it
unconstitutional.
B.
Turning to Cahaly’s compelled-speech challenge, if
robocalls are permitted because they fall within one of the
13
three exceptions listed in Section 16-17-446(B), then the
statute requires those calls to disclose “(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.” S.C.
Code Ann. § 16-17-446(C)(1) (cross-referencing § 16-17-
445(B)(1)-(3)). The district court ruled that these mandatory
disclosures unconstitutionally compel speech. The Defendants
contend this ruling is in error due to the absence of a case or
controversy, a jurisdictional prerequisite under Article III of
the U.S. Constitution. We agree.
One requirement of Article III standing is that the
plaintiff suffer an “injury in fact.” Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). While “actual
arrest or prosecution” for violating a statute establishes an
injury in fact, Steffel v. Thompson, 415 U.S. 452, 459 (1974),
so too may a “credible threat of prosecution thereunder.”
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979).
As the Defendants note, Cahaly was not charged with
violating Section 16-17-446(C)(1), the disclosure provision,
despite the affidavits submitted to the magistrate judge
alleging that Cahaly’s robocalls “failed to promptly disclose in
a clear and conspicuous manner to the receiver of the call the
14
identity of the originating party, endorsement of a candidate
and or [sic] the nature of the call.” J.A. 237-42. Rather, he
was charged solely with violating Sections 16-17-446(A)-(B),
which ban political robocalls outright. In addition, the
affidavits do not allege any facts about Cahaly’s relationship
to the called parties, but the called parties’ express or
implied consent to being called is a necessary condition for the
disclosure provision to apply. See S.C. Code Ann. § 16-17-
446(B)-(C). Thus, federal jurisdiction hinges on whether Cahaly
faces “sufficiently imminent” future arrest or prosecution.
Driehaus, 134 S. Ct. at 2342.
The record contains no evidence to support this
prerequisite to federal jurisdiction. In a declaration, Cahaly
explains his “desire to conduct telephone survey polls in the
future in the State of South Carolina of a political nature and
telephone calls related to political campaigns.” J.A. 73. But
never does he allege his intention to make robocalls permitted
by the statute, and therefore subject to the disclosure
provision, by falling within one of the Section 16-17-446(B)
exceptions.
As a result, Cahaly lacks standing to challenge the
disclosure provision as compelled speech. We therefore vacate
the district court’s judgment on this claim, and remand with
instructions to dismiss it.
15
C.
Regarding Cahaly’s vagueness challenge, the district court
ruled that he lacked standing to press it. We agree.
“One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.” Parker v. Levy, 417
U.S. 733, 756 (1974). Cahaly argues that the anti-robocall
statute does not clearly apply to him because he made survey
calls. But he does not dispute that his robocalls were also “of
a political nature,” a category to which the statute expressly
applies. S.C. Code Ann. § 16-17-446(A). Because the statute
squarely covers Cahaly’s calls, we affirm the district court’s
judgment dismissing his vagueness challenge.
III.
We turn to Cahaly’s cross-appeal of his § 1983 and state
law claims. Because we find that probable cause supported his
arrest for violating the anti-robocall statute, we affirm the
district court’s grant of summary judgment to the Defendants.
A.
Cahaly alleges that LaRosa and Lloyd violated § 1983 by
arresting and prosecuting him in retaliation for his exercise of
free speech. He first argues that a genuine issue of material
fact exists as to whether LaRosa had probable cause to arrest
him. We disagree.
16
A law enforcement officer who obtains an arrest warrant
loses the protection of qualified immunity “[o]nly where the
warrant application is so lacking in indicia of probable cause
as to render official belief in its existence unreasonable.”
Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991)
(alteration in original) (quoting Malley v. Briggs, 475 U.S.
335, 344-45 (1986)). “‘[P]robable cause’ to justify an arrest
means facts and circumstances within the officer’s knowledge
that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown,
that the suspect has committed . . . an offense.” Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979). Although we agree with
Cahaly and the district court that the statute is
unconstitutional, at the time of Cahaly’s arrest, “there was no
controlling precedent that [the statute] was or was not
constitutional [and a] prudent officer [is not] required to
anticipate that a court would later hold the [statute]
unconstitutional.” Id. at 37-38. Thus, our earlier holding has
no bearing on whether LaRosa had probable cause when he arrested
Cahaly.
Before making the arrest, LaRosa had statements from six
witnesses describing the robocalls and a recording of one of the
calls. Some of the witnesses also provided the telephone number
of the caller, and a later investigation connected that number
17
to Cahaly as the president of the entity that paid for it.
Moreover, one witness reported that the call “was not a real
survey because pressing a button was not an option.” J.A. 128.
LaRosa was also aware of the Attorney General’s opinion
letter stating that “automated survey telephone calls for
political purposes” fell outside the anti-robocall statute.
J.A. 83. However, we think that a reasonable officer could have
determined that Cahaly’s robocalls differed from those
contemplated by the Attorney General based on the overtly
political nature of the calls and one witness’s view that the
survey aspect was a sham. Even if that determination was wrong
as a matter of law, officers may have probable cause to arrest
based on “reasonable mistakes of law.” Heien v. North Carolina,
135 S. Ct. 530, 536-37 (2014).
Cahaly contends that the arrest warrants are facially
invalid because they include disclosure requirements that appear
nowhere in the statute. The affidavits used to obtain the
warrants allege that Cahaly “failed to promptly disclose in a
clear and conspicuous manner to the receiver of the call the
identity of the originating party, endorsement of a candidate
and or [sic] the nature of the call.” J.A. 237-42. But Section
16-17-446(C) only requires some robocalls to disclose “(1) the
identity of the seller; (2) that the purpose of the call is to
18
sell goods or services; [and] (3) the nature of the goods or
service.” S.C. Code Ann. § 16-17-445(B)(1)-(3).
An arrest warrant is invalid only if the officer preparing
the affidavit included a false statement with reckless disregard
for its truth and, after that statement is redacted, “the
affidavit’s remaining content is insufficient to establish
probable cause.” Franks v. Delaware, 438 U.S. 154, 156 (1978).
Even assuming that the disclosure requirements in the affidavits
were false statements and that LaRosa acted with reckless
disregard for their truth by including them, we still find
probable cause based on the remaining content. The affidavits
allege that Cahaly made robocalls of a political nature, and
nothing more is required to violate the anti-robocall statute.
Consequently, we affirm the district court’s judgment that
LaRosa and Lloyd are entitled to qualified immunity. 3
3
Cahaly also argues that the arrest warrant affidavits fail
to include an essential element of the offense by not alleging
that his robocalls included a prize promotion. Section 16-17-
446(A) defines “‘Adad’ [to] mean[] an automatically dialed
announcing device which delivers a recorded message without
assistance by a live operator for the purpose of making an
unsolicited consumer telephone call as defined in Section 16-17-
445(A)(3).” The cross-reference takes readers to the definition
for a “prize promotion” at Section 16-17-445(A)(3) while the
definition for “unsolicited consumer telephone call” appears at
Section 16-17-445(A)(4). According to Cahaly, this cross-
reference should be interpreted literally, such that
“unsolicited consumer telephone call” means “prize promotion.”
(Continued)
19
B.
From our conclusion that LaRosa had probable cause to
arrest Cahaly, we quickly dispense with Cahaly’s state law
claims. Under South Carolina law, a claim for false
imprisonment requires the plaintiff to demonstrate, in part,
that “the restraint was unlawful.” Law v. S.C. Dep’t of Corr.,
629 S.E.2d 642, 651 (S.C. 2006). “The fundamental issue in
determining the lawfulness of an arrest is whether there was
probable cause to make the arrest.” Id. To state a claim for
malicious prosecution, a South Carolina plaintiff must
establish, among other things, “lack of probable cause.” Id. at
648. Because Cahaly has not satisfied this element of the
claims, we affirm the district court’s judgment in favor of the
Defendants.
We find that construction nonsensical and obviously
contrary to legislative intent. The statute provides a
definition for “unsolicited consumer telephone call” in the very
next subsection. And as the Defendants point out, the
legislative history shows that the cross-reference to prize
promotion is a typographical error. As originally enacted, the
definition of “unsolicited consumer telephone call” appeared at
Section 16-17-445(A)(3). H.R. 3453, 107th Gen. Assemb. (S.C.
1988). The legislature later added a definition for “prize
promotion” and bumped the definition for “unsolicited consumer
telephone call” to the next subsection. In so doing, the
legislature simply neglected to update the cross-reference in
Section 16-17-446(A).
20
IV.
For the foregoing reasons, we affirm in part and vacate in
part the district court’s judgment, and remand the case with
instructions to dismiss the compelled-speech claim.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
21