Cahaly v. LaRosa

Judge Albert Diaz wrote the opinion striking down South Carolina's robocall prohibitions, with unanimous concurrence.

As a content-based regulation of speech, the anti-robocall statute is subject to strict scrutiny. Under this standard, the government must prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. If a less restrictive alternative would serve the [g]overnment's purpose, the legislature must use that alternative. Moreover, the restriction cannot be overinclusive by unnecessarily circumscrib[ing] protected expression, or underinclusive by leav[ing] appreciable damage to [the government’s] interest unprohibited.^[7] (internal quotes and references omitted)

Acknowledgment was made by the court that restrictions on robocalls in Minnesota, § California, and federal law had been upheld by several other courts; notwithstanding, the statutes in those cases, as noted by the court, do not single out political or commercial robocalls, but prohibited all types of robocalls (with limited exceptions). The court also ruled that Cahaly lacked standing in order to challenge a provision of disclosure when making an automated call as compelled speech.^[8]

In reaction to the U.S. Court of Appeals ruling, several media outlets speculated that political campaigns, especially presidential, would lean much more heavily on the use of automated phone calls in order to reach voters and to push certain messages.^[9] This might include negative campaigning and so called "push" polls. A profound effect was expected and seen upon tactics used during South Carolina's "First in the South" primary in 2016 and in subsequent elections.^[10][11]