YOU CAN’T escape them during political campaign season, particularly if you live in South Carolina and the season in question involves the presidential primaries: robocalls. The automated pre-recorded phone calls have become an increasingly important part of most politicians’ arsenals over the past decade, because they’re quick and cheap and they make it easy to get out a message.
Most people hate them because the insult of having their lives interrupted by an unsolicited solicitation is compounded by the injury of being asked to wait for the interrupter, or simply being hung up on, or by having their answering machines filled with the prerecorded messages.
I hate them because they’ve made it so much easier for politicians to launch push polls, which pretend to be gauging public opinion but are really spreading rumors, innuendo and sometimes outright lies.
A lot of people believe we would have been assaulted even more if not for a 1991 state law that severely limits the use of robocalls, requiring them to disconnect if a live person answers the phone; that means the only robocalls we’re supposed to encounter are the ones that clog our answering machines.
Last month, the U.S. 4th Circuit Court of Appeals struck down that law, ruling that it unconstitutionally singled out business and political calls. That leaves South Carolina with no restrictions on robocalls — not even the provisions that outlaw telephone solicitations between 7 p.m. and 8 a.m. and require the callers to identify themselves and their purpose.
The news and opinion website The Daily Beast warned of a “Coming Robocall Apocalypse” as a result of the ruling, with a particular increase in the push polls, which start out with legitimate poll questions but then quickly move into the rumor, innuendo and lies. (Would you be more or less likely to support Senator Smith if you knew that he regularly beat his children?)
It’s a reasonable expectation. It was, after all, a push poll that birthed the decision.
In 2010, a GOP political activist named Robert Cahaly placed robocall push polls in six S.C. House districts, the candidates complained, and on election eve, a magistrate issued six arrest warrants against Mr. Cahaly. He proclaimed his innocence, producing a letter from the attorney general’s office that said the push polls didn’t meet the definition of robocalls in state law; the court concluded that Mr. Cahaly must have misled the attorney general’s office as to his intentions, because his calls clearly were against the law. It was the law, the court said, that was a problem. (The state dropped the charges long ago, but Mr. Cahaley pursued his lawsuit to last month’s conclusion.)
Bizarre as it sounds, there was some logic to the law. The federal Do Not Call Registry already prohibits unsolicited solicitations, robo or live, from businesses. But it has that pesky little exemption for political calls, and so legislators were looking for a way to limit a segment of those calls (read: the segment that they believed were more likely to be made against them than by them).
The court didn’t recognize this logic in its ruling, but it did recognize that if the state were telling the truth about the reason it passed the law — “to protect residential privacy and tranquility from unwanted and intrusive robocalls” — then it would have barred all robocalls. That would have meant including charities.
Because the Legislature didn’t cover all robocalls or provide a compelling reason for failing to do so, the court found, the law was under-inclusive. It also was over-inclusive, the court said, because the Legislature knew that the public was much more annoyed by commercial robocalls than by political robocalls.
The court also noted that South Carolina could have achieved its stated goal through less restrictive means, such as “time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists.” Other states have passed such laws, and it is the absence of any such measure that has The Daily Beast warning of an apocalypse. (A lower court had ruled that requiring identifying information from robocallers was unconstitutional as compelled speech, but the 4th Circuit overturned that offensive finding.)
All of those restrictions have passed judicial scrutiny and would make sense for our Legislature to approve. In fact, it would be absolutely wonderful for the Legislature to create a state Do Not Call Registry with the provision that the Congress should have included in the federal law but did not — allowing us to opt out of political calls as well as business calls.
Short of that, Mr. Cahaly himself has offered an easy fix, although I suspect he was attempting to make a point rather than offering a serious suggestion. “If people don’t like them,” he told The Daily Beast, “make them all illegal.”
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.