Professional Documents
Culture Documents
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:
Decided:
August 6, 2015
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.
C.
consultant,
Carolinas
Cahaly,
was
self-described
arrested
anti-robocall
for
Republican
alleged
statute.
violations
After
the
political
of
charges
South
were
Cahaly
officials
compelling
also
involved
speech,
sought
in
his
and
damages
arrest
as
from
(and
unconstitutionally
the
the
law
enforcement
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 antirobocall statute is a content-based regulation that does not
survive
strict
scrutiny. 1
We
also
hold
that
Cahaly
lacks
I.
A.
In
1991,
the
statute
regulating
recorded
messages,
South
Carolina
automated
General
telephone
calls
robocalls. 2
or
Assembly
This
enacted
that
deliver
statute
places
purposes.
By
definition,
it
prohibits
only
those
telephone
including,
campaigns.
but
not
call
or
limited
are
to,
of
calls
political
relating
to
nature
political
16-17-446(B).
robocall
must
If
disconnect
an
exception
immediately
applies,
when
the
the
permitted
called
party
hangs up; must be made between 8:00 AM and 7:00 PM; and may
2
not
ring
at
hospitals,
police
stations,
fire
departments,
Some
permitted
robocalls
must
Id. 16-17also
disclose
Id.
16-17-445(B)(1)-(3), -446(C)(1).
Other
statutory
solicitors
making
provisions
unsolicited
contain
consumer
rules
for
telephone
live
calls.
Solicitors must place their calls from 8:00 AM and 9:00 PM, make
certain
disclosures,
and
maintain
do-not-call
list.
Id.
16-17-445(B)-(E).
A
offense.
violation
of
the
statute
constitutes
misdemeanor
Id.
B.
the
House
Nancy
the
South
Carolina
Office
of
the
Attorney
General
told
J.A. 74.
The
made
letter,
that
the
day
request,
and
before
Cahaly
the
Attorney
made
the
General
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 recipients 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
himself
in,
recognizance.
The
was
booked,
warrants
and
were
was
On November 3, Cahaly
released
dismissed
on
his
eighteen
own
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
Defendants).
time
Cahaly
of
Cahalys
sought
arrest
(collectively,
declaration
that
the
the
anti-
robocall
statute
was
unconstitutional
and
an
injunction
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
injunctive
relief.
The
Defendants
moved
for
summary
The district
found
the
underinclusiveness
statute
and
unconstitutional
its
singling
out
due
of
to
its
commercial
and
also
robocalls
determined
to
that
disclose
unconstitutional
as
the
statutory
certain
compelled
provision
identifying
speech,
but
requiring
information
that
The
Cahaly
was
lacked
district
court
awarded
summary
judgment
to
the
and
Lloyd
were
entitled
to
qualified
immunity
on
the
1983
Cahaly
defeated
his
false
imprisonment
and
malicious
courts
judgment
prosecution claims.
The
Defendants
appeal
granting
declaratory
and
the
district
injunctive
relief.
Cahaly
cross-
de
novo
the
district
courts
order
granting
We
summary
Brown v.
II.
We begin with Cahalys First Amendment claim.
First, we
on
speech
subject
to
intermediate
scrutiny
or
then
provision
turn
to
whether
constitutes
the
compelled
statute
is
statutes
content
speech.
mandatory
Lastly,
disclosure
we
reach
based
and
does
not
survive
strict
scrutiny, and that Cahaly lacks standing to bring his compelledspeech and vagueness challenges.
A.
The Supreme Court recently clarified the content-neutrality
inquiry in the First Amendment context.
content-neutral
law
will
be
categorized
as
because
speech] conveys.
of
disagreement
with
the
message
[the
justified
speech,
[that]
without
[citation
omitted]
regulation
content
differentiates
between
we
to
the
have
neutral
types
of
content
not
hesitated
even
speech.)
of
if
it
(quoting
regulated
to
deem
facially
Wag
More
Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 366 (4th Cir.
2012) (last alteration in original)).
that,
when
governments
conducting
purpose
the
is
content-neutrality
the
controlling
inquiry,
[t]he
consideration.
29.
Applying Reeds first step, we find that South Carolinas
anti-robocall statute is content based because it makes content
distinctions on its face.
regulation
of
speech
is
based
if
law
applies
to
expressed.
135
S.
Ct.
at
2227.
Here,
the
anti-
the
a
government
compelling
must
interest
Id. at 2231.
prove
and
is
that
the
narrowly
Under this
restriction
tailored
to
If
United
States v. Playboy Entmt Grp., Inc., 529 U.S. 803, 813 (2000).
Moreover,
the
restriction
unnecessarily
cannot
be
circumscrib[ing]
overinclusive
protected
by
expression,
Brown
underinclusive
v.
Hartlage,
by
456
leav[ing]
U.S.
45,
54
appreciable
(1982)),
damage
to
or
[the
asserted
government
interest
here
is
to
protect
government
statute
is
has
failed
narrowly
restrictive
to
prove
tailored
alternatives
to
that
serve
include
the
it.
anti-robocall
Plausible
time-of-day
less
limitations,
disclosures,
refrain
from
making
late-night,
early-
with
Minnesota,
59
a . . .
F.3d
do-not-call
1541,
1551
12
(8th
list);
Cir.
Van
1995)
Bergen
v.
(considering
The government
concluded,
Complaint
statistics
show
that
unwanted
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.
the
statute
does
not
pass
muster
under
strict
are
to
Cahalys
permitted
compelled-speech
because
13
they
fall
challenge,
within
one
of
if
the
three
exceptions
listed
in
Section
16-17-446(B),
then
the
Ann.
16-17-446(C)(1)
445(B)(1)-(3)).
disclosures
(cross-referencing
S.C.
16-17-
unconstitutionally
compel
speech.
The
Defendants
requirement
We agree.
of
Article
III
standing
134
S.
Ct.
2334,
is
that
the
2341
(quoting
Lujan
v.
While actual
too
may
credible
threat
of
prosecution
thereunder.
Babbitt v. United Farm Workers Natl Union, 442 U.S. 289, 298
(1979).
As
violating
despite
the
Defendants
Section
the
note,
Cahaly
16-17-446(C)(1),
affidavits
submitted
the
to
was
not
charged
disclosure
the
with
provision,
magistrate
judge
charged
which
ban
solely
with
political
violating
robocalls
J.A. 237-42.
Sections
Rather, he
16-17-446(A)-(B),
outright.
In
addition,
the
the
called
parties,
but
the
called
parties
express
or
provision
446(B)-(C).
faces
to
apply.
See
S.C.
Code
Ann.
16-17-
sufficiently
imminent
future
arrest
or
prosecution.
record
contains
no
evidence
to
support
this
In a declaration, Cahaly
J.A. 73.
But
the
statute,
and
therefore
subject
to
the
disclosure
result,
Cahaly
lacks
standing
to
challenge
the
We therefore vacate
C.
Regarding Cahalys vagueness challenge, the district court
ruled that he lacked standing to press it.
We agree.
733,
756
(1974).
Cahaly
argues
that
the
anti-robocall
III.
We turn to Cahalys cross-appeal of his 1983 and state
law claims.
We disagree.
16
v.
Siwinski,
942
F.2d
257,
261
(4th
Cir.
1991)
facts
are
and
circumstances
sufficient
to
within
warrant
the
officers
prudent
person,
knowledge
or
one
of
and
the
district
court
Michigan v.
the
statute
is
precedent
constitutional
anticipate
[and
that
unconstitutional.
a]
that
[the
prudent
court
officer
would
Id. at 37-38.
statute]
later
[is
was
or
not]
hold
was
required
the
not
to
[statute]
J.A. 128.
stating
political
J.A. 83.
that
purposes
automated
fell
outside
survey
telephone
calls
the
anti-robocall
for
statute.
determined
contemplated
that
by
Cahalys
the
robocalls
Attorney
General
differed
from
based
the
on
those
overtly
political nature of the calls and one witnesss view that the
survey aspect was a sham.
contends
that
the
arrest
warrants
are
facially
in
the
statute.
The
affidavits
used
to
obtain
the
J.A. 237-42.
But Section
18
its
truth
affidavits
and,
after
remaining
probable cause.
that
content
statement
is
is
insufficient
redacted,
to
the
establish
false
disregard
statements
for
their
and
truth
that
by
LaRosa
acted
including
them,
with
we
reckless
still
find
The affidavits
we
affirm
the
district
courts
judgment
that
B.
From
arrest
our
Cahaly,
claims.
conclusion
we
Under
imprisonment
that
quickly
South
requires
LaRosa
dispense
Carolina
the
had
with
law,
plaintiff
to
probable
cause
Cahalys
a
claim
state
for
demonstrate,
in
to
law
false
part,
Id.
malicious
Carolina
prosecution,
South
Because
Cahaly
has
not
satisfied
this
element
must
Id. at
of
the
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 courts judgment, and remand the case with
instructions to dismiss the compelled-speech claim.
21