No First Amendment Protection For Dirty Political Tricks

Here’s a decision from the U.S. Court of Appeals for the Fourth Circuit rejecting a political consultant’s argument that the First Amendment prohibits an action against him under the Telephone Consumer Protection Act. Julius Henson and his company, Universal Elections, Inc. were engaged by Robert Ehrlich, the Republican candidate for Governor of Maryland in connection with the 2010 gubernatorial election. 

Henson recorded a taped phone call with this message:

Hello. I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We’re okay. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you.

That message was then made part of a robocall campaign that went to more than 112,000 Maryland residents on election day. Nowhere did the calls indicate that Ehrlich and Henson were responsible for them. That failure is a blatant violation of the TCPA, which requires the party making robocalls to identify themself. And in case you are wondering why the calls were made, let’s allow the court’s opinion to explain

[T]he documentary evidence in the record and the deposition testimony of Russell and Ehrlich staffers establish without any doubt that Henson discussed plans to suppress the votes of African-American Democrats, recorded the plan in the strategy memo sent to the Ehrlich campaign, and ultimately dictated and authorized the offending message.

Given the evidence establishing exactly how sleazy Henson’s strategy was, he was left with little option but to attack the law. Henson claimed that the TCPA’s requirement violated his First Amendment right to . . . uh . . . defraud voters I guess. Fortunately, the court was unmoved. It noted that the TCPA is a content neutral regulation – it applies no matter what the message says. And for that reason, it survives a Frist Amendment challenge so long as it advances a substantial government interest and  any restriction is no greater than necessary to advance the interest. 

The court pointed to three interests the TCPA promotes. First, by requiring the identity of the robocaller, it promotes privacy – the consumer can contact the caller and demand the calls stop. Second, by requiring identification it prevents misleading calls. The calls in this case are a perfect example. If recipients knew Ehrlich and Henson were behind the calls, they’d have a clearer picture of what was going on. Finally, identification promotes more effective law enforcement. 

The court also found that the identification requirement is not much of a burden on speech. In response, according to the court’s opinion, Henson “failed to present a comprehensible argument to the contrary.” That is a polite way of saying Henson is full of it. 

I wasn’t there, but I seriously doubt that James Madison, Thomas Jefferson and the other founding fathers adopted the First Amendment to make life easier for some bottom feeding political hack. Good work by the Fourth Circuit.