November 1, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:10-cv-723-WTL-MPB - William T. Lawrence, Judge.
Easterbrook, Rovner, and Sykes, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
a veterans' group, contends that an anti-robocall
statute, Ind. Code §24-5-14-5, violates the First
Amendment to the Constitution, applied to the states by the
Fourteenth Amendment. The Telephone Consumer Protection Act,
47 U.S.C. §227, which contains a similar limit, has been
sustained by two circuits. See Gomez v. Campbell-Ewald
Co., 768 F.3d 871 (9th Cir. 2014), affirmed on other
grounds, 136 S.Ct. 663 (2016); Van Bergen v.
Minnesota, 59 F.3d 1541, 1549-56 (8th Cir. 1995);
Moser v. FCC, 46 F.3d 970 (9th Cir. 1995). The same
circuits have approved state laws as well. See Van
Bergen (sustaining a Minnesota law in addition to
§227); Bland v. Fessler, 88 F.3d 729 (9th Cir.
1996) (California law). But relying on Cahaly v. LaRosa,
796 F.3d 399 (4th Cir. 2015), which found South
Carolina's antirobocall law to be unconstitutional,
plaintiff maintains that Reed v. Gilbert, 135 S.Ct.
2218 (2015), made these decisions obsolete and dooms both
state and federal anti-robocall statutes as instances of
content discrimination. We disagree with that contention and
conclude that Indiana's law is valid.
forbids recorded phone messages placed by automated dialing
machines unless "(1) the subscriber has knowingly or
voluntarily requested, consented to, permitted, or authorized
receipt of the message; or (2) the message is immediately
preceded by a live operator who obtains the subscriber's
consent before the message is delivered." Ind. Code
§24-5-14-5(b). Plaintiff maintains that the option given
by subsection (b)(2) is prohibitively expensive, so that as a
practical matter the statute forbids robocalls in the absence
of advance consent by the recipient. We shall assume that
this is so. Yet the requirement of consent is not content
discrimination, so plaintiff focuses attention on three
This section does not apply to any of the following messages:
(1) Messages from school districts to students, parents, or
(2) Messages to subscribers with whom the caller has a
current business or personal relationship.
(3)Messages advising employees of work schedules.
Ind. Code §24-5-14-5(a). The district court concluded
that these exceptions do not constitute content
discrimination and held that the law is constitutional. 177
F.Supp.3d 1120 (S.D. Ind. 2016). The district court had
earlier deemed the Indiana statute preempted, but we
reversed, 736 F.3d 1041 (7th Cir. 2013), leaving only the
tells us that the statute as a whole disfavors political
speech and therefore entails content discrimination, as
Reed understood that phrase. We don't get it.
Nothing in the statute, including the three exceptions,
disfavors political speech. The statute as a whole disfavors
cold calls (that is, calls to strangers), but if a recipient
has authorized robocalls then the nature of the message is
irrelevant. The three exceptions in §24-5-14-5(a)
likewise depend on the relation between the caller and the
recipient, not on what the caller proposes to say. Our first
opinion described these exceptions as a form of implied
consent, 736 F.3d at 1047, adding to the express consent
exception in §24-5-14-5(b)(1). The exceptions
collectively concern who may be called, not what may be said,
and therefore do not establish content discrimination.
not quite true of §24-5-14-5(a)(3), which deals with
messages "advising employees of work schedules." If
plaintiff proposed to make automated calls to its own
employees, it could contend that the restriction-the calls
must concern work schedules-blocked it from including
political speech. But, when asked at argument, counsel for
plaintiff stated that the organization does not feel
inhibited in communicating with its own employees-who, after
all, may have given express consent under
§24-5-14-5(b)(1). So if we were to hold that employers
may say anything they like in automated calls to employees,
this would do plaintiff no good.
would an injunction striking subsection (a)(3) from the
statute. Such an injunction would make plaintiff worse off by
making it harder to get in touch with its staff, and
plaintiff understandably has not asked for that relief. What
it wants is an order preventing Indiana from enforcing
§24-5-14-5(b). Potential problems with how subsection