INDIANAPOLIS — A federal judge has ruled that Indiana can block a California-based group from making automated calls that attack Democratic congressional candidate Baron Hill, who is challenging Republican U.S. Rep. Mike Sodrel in the 9th District.
In September, Indiana Attorney General Steve Carter sued the Economic Freedom Fund in Brown County after receiving 12 consumer complaints about the calls, which are prohibited by state law unless previously agreed to by the recipient. The fierce 9th District race was expected to be one of the closest in the country as both parties fight for control of the U.S. House.
FreeEats.com, the Virginia company that made the calls on behalf of the Economic Freedom Fund, later filed a federal lawsuit against Indiana claiming that its ban on such calls is an unconstitutional restraint on free speech and interstate commerce.
The Oct. 24 ruling by U.S. District Judge Larry McKinney denied FreeEats' motion, saying the automated-calls ban does not violate the First Amendment nor restrain interstate commerce.
Earlier this month, the company lost a U.S. Supreme Court challenge to a North Dakota law that bars telemarketers from making pre-recorded interstate calls to that state's residents.
McKinney found Indiana's statute leaves open "ample alternative forms" of political speech such as door-to-door campaigning, bulk mailings, leafleting, and use of posters and signs. He found the statute does not ban companies from calling Indiana residents, just the automated calls.
"The government interest served by the statute is the protection and preservation of residential privacy," McKinney's ruling states. "As the Supreme Court has recognized, this interest is 'of the highest order.'
"Contrary to FreeEats' suggestion, the harm is more than the simple ringing of the telephone," McKinney writes. "A call recipient cannot interrupt a prerecorded message and request not to be contacted, and if the individual does not answer the telephone or hangs up he or she runs the risk of additional calls in the future."
Congress has determined automated calls are more of a nuisance and a greater invasion of privacy than a live operator, McKinney found.
He also rejected FreeEats' claims that Indiana law is pre-empted by federal law and Federal Communications Commission regulations.
In a news release, Carter said "this ruling recognizes the individual privacy rights of citizens."
FreeEats claimed in its lawsuit that it would cost more than $2 million and take much longer for live operators to call Indiana residents. It claimed the higher costs constitute a restriction of commerce, an argument McKinney rejected.
Gabriel Joseph, president of FreeEats.com, said yesterday that the company was reviewing the decision with its attorneys to look at its options. He reiterated his claim that the battle was about free speech.
The Economic Freedom Fund had agreed to stop making the calls while litigation proceeded.
In August, Carter sent a letter to Indiana's Democratic and Republican parties informing them that a 1988 state law prohibited automated phone calls for political purposes. He promised to enforce the law, even though it had been widely ignored during past political campaigns.
So far this year, the attorney general's office has taken legal action or filed agreements with eight companies for making pre-recorded calls in violation of the state and federal statues.
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