The note first discusses the pros and cons of robocalls, concluding that certain restrictions on robocalls are desirable. Next, the note examines current constitutional case law governing the issue. Thereafter, the note illustrates how Arkansas's regulation on political robocalls would fail a First Amendment challenge as currently written. Accordingly, the note proposes a revision to the robocall statute that would most likely allow it to pass constitutional review.
The note concludes that the burdens resulting from robocalls are placed upon robocall recipients, opposing political campaigns (especially those that determine not to use them under current law), and unrelated third parties. Therefore, the government has an interest in restricting political robocalls. However, despite the government's interest, Arkansas's statutory prohibition on political robocalls is unconstitutional as written because it is a content-based restriction that is not narrowly tailored and there are less restrictive means available. Specifically, the restriction is content based because any determination of whether a robocall's purpose is connected with a political campaign requires an examination of the content of the message. However, this impasse can be easily addressed by revising the statute to prohibit all robocalls, regardless of the message, rendering the statue a reasonable time, place, or manner restriction.
Caleb J. Norris,
Constitutional Law—First Amendment and Freedom of Speech—the Constitutionality of Arkansas’s Prohibition On Political Robocalls,
34 U. Ark. Little Rock L. Rev. 797
Available at: http://lawrepository.ualr.edu/lawreview/vol34/iss4/8