The First Amendment and its right to free speech at times can revive something on the verge of extinction: agreement between Democrats and Republicans.
In South Carolina, a Republican consultant sued the state over his arrest for making robocalls, which were designed to help Republicans. Last month, three federal judges appointed by President Obama sided with the consultant – and implicitly against the Democrats who had complained.
The result: With an important presidential primary around the corner, South Carolina has no law governing political campaign calls, and experts predict voters there will drown in crafty “push polls” and slanted pre-recorded messages. It’d be justice, we think, if fed-up voters did what the law couldn’t and persuaded candidates to stop such calls by voting against candidates who make them.
This whole tiff started in 2010, when consultant Robert Cahaly placed automated robocalls in six S.C. House districts, linking Democratic candidates to Nancy Pelosi. That, authorities said, broke an S.C. law passed in 1991 that banned political and commercial robocalls. (This despite Cahaly having received an opinion from the state’s attorney general that it didn’t.)
Cahaly briefly went to jail. The charges were dropped, but Cahaly sued to overturn the law. A federal district judge sided with Cahaly last year, and last month Albert Diaz, Jim Wynn and Stephanie Thacker of the U.S. Fourth Circuit Court of Appeals agreed. Thus, South Carolinians, brace yourself.
The judges reasoned that the ban singled out political and commercial speech while allowing other kinds of robocalls, such as from charities. This was unacceptable because the stated interest was to protect residents’ “privacy and tranquility.” The anti-robocall law singled out certain kinds of speech and wasn’t “narrowly tailored” to achieve the goal.
The judges said the state could, for example, install time-of-day limitations, require disclosure of the caller’s identity and create do-not-call lists.
Cahaly and the judges are right. The S.C. law did violate the First Amendment. We applaud the ruling’s protection of free speech.
But while legally sound, the ruling will almost certainly lead to a tsunami of political phone calls to voters. And let’s be clear: These largely aren’t positive, informational messages. They’re not only annoying; they are misleading, underhanded and, sometimes, outright false.
So at least one of two things needs to happen: S.C. legislators need to replace the unconstitutional law with one that protects voters’ privacy in a constitutional way, such as by creating a do-not-call registry. Or voters need to punish those candidates who use the calls to spread rumors and twist the truth.
That might be another thing that brings Democrats and Republicans together.