Political analysts were sure something had changed after Richard Mourdock, a Republican who was originally favored to win a U.S. Senate race in Indiana, asserted that when a rape results in pregnancy, it “is something that God intended to happen.” But until Election Day, they didn’t know how much.
As it turned out, the comment was enough to cost Mourdock the election. That information, however, came only from polls, not from pollsters.
In many other states, prospective voters would have been quickly inundated with automated calls soliciting their reaction to Mourdock’s comment. In Indiana, that did not happen. A state law there prohibits all prerecorded “robocalls” unless a live operator first gets permission to put the recorded voice on the line. The Supreme Court’s recent decision not to hear a challenge to that law ensures that, at least for the time being, when Indiana residents pick up the phone, they will find a person on the other end rather than a recording.
On the national level, the Federal Trade Commission’s Telemarketing Sales Rule makes it illegal for commercial entities to use robocalls unless the recipients have said they are willing to be called. The FTC has also offered a $50,000 cash prize to the person who can come up with the best technological solution to block commercial robocalls.
But while the FTC wages its war against robocalls from credit card companies and magazine subscription drives, politicians continue to use the calls to fight their battles. In the final days of the presidential race, the Romney campaign set voters’ phones ringing with a barrage of automated messages.
According to the National Conference of State Legislatures, a bipartisan organization that provides research and other services for legislators and their staffs, Indiana is one of only 14 states that restrict automated calls by political candidates. Arkansas and Wyoming have the strictest laws, prohibiting all automated political calls, while Minnesota, Montana, North Carolina and North Dakota have laws similar to Indiana’s, requiring live operators to get consent before playing recorded messages.
In 2006 FreeEats.com, an automated call service provider that made calls on behalf of the Economic Freedom Fund, challenged the Indiana law on the grounds that it violated the free speech clause of the Indiana Constitution. The clause, paralleling the First Amendment, states, “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever.” FreeEats claimed that the live-operator requirement restricts speech by increasing costs in a way that might limit the provider’s ability to reach voters.
The Indiana Supreme Court weighed in on the case last year, ruling 4-1 against granting an injunction to stop enforcement of the law while the free speech claim is litigated. A key factor in the court’s decision was that the law applies only to speech that “is made through private channels to reach private residences.”
This distinction is critical. We all have a right to speak our minds in public forums, but that does not give us the right to intrude on our neighbors’ peace and privacy to make them listen. Citizens of Indiana, like the rest of us, pay for their cell phones and landlines. They have every right to control who can and can’t communicate with them through those devices, whether they do that by individually blocking particular numbers or by collectively passing laws prohibiting certain types of calls.
Yes, the Indiana law makes pollsters’ jobs harder and more costly. Whether that cost is acceptable is a legitimate public policy question, but it is not a matter of free speech.
Sure, a lot of us wanted to know how Mourdock’s ill-considered comment on rape affected his election prospects, but that does not justify adding an exception to the law for political polling. Such an exemption would effectively gut the law, because not all so-called polls are genuine attempts to gauge public opinion. Many are actually veiled attempts to influence the public instead.
Consider this hypothetical survey question: “Do you agree with Candidate Joe Blow’s position that violent criminals should be given a second, a third or even a fourth opportunity to commit street crimes, while victims’ rights are ignored?” This question is not really intended to elicit voters’ views on Joe Blow’s position. It is intended to convince voters that Joe Blow is soft on crime. Such questions are common in political surveys conducted by partisan groups.
The Indiana case is not necessarily over yet. So far the courts have only addressed whether to block the law while the free-speech claim is considered, a step they declined to take.
So, while the issue remains on the docket, Indiana can continue enforcing its law, and we will know less about where its candidates stand with the voters. But we will know that those voters are free to go about their business without having their meals, their work or their sleep interrupted by prerecorded voices. A lot of people probably envy them.
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