Law Review: Federal court upholds robocalling?

Jim Porter
Law Review
Jim Porter

One of my pet peeves, right up there with gerrymandering (which our conservative U.S. Supreme Court loves), is robocalling. Robocallers are the scourge of the earth. You can quote me on that.

I’m very dubious why carriers claim to be unable to stop robocalling scammers spoofing local phone numbers, using every trick in the book. I just got a call last week from New York. Don’t ask me why I took it, the caller was speaking an Asian language, not my specialty.


In 2018, studies estimated that Americans receive between 25 and 40 billion robocalls – a 45-60% increase from the prior year. 5.1 billion last November. Most of those robocalls went to our house. The Do Not Call registry does not seem to help. My legal assistant received a robocall last week from her cellphone number!

As this federal court of appeals wrote, “At their worst, robocalls provide a cheap vehicle for scammers masquerading as the Internal Revenue Service, banks, or utility providers; promising nonexistent preapproved loans or loan forgiveness; and more – aiming to finagle money and sensitive information from unsuspecting consumers.”


In an effort to stem the continuous flow of intrusive robocalls at all hours of the day and night, Montana passed a law which restricted automatic phone calls.

The law was aggressive, prohibiting the use of an automated telephone system or device for the selection and dialing of telephone numbers and playing of recorded messages. The law applied to the offering of goods for sale … to promoting a political campaign. The latter is what got Montana into trouble, because soliciting money for a political campaign is considered speech. Speech like this: Robocallers have a free speech right to try and extract money from you for a political candidate you do not know, let alone support, who has the right to intrude into your home and ask for money.

Montana’s anti-robocalling law was challenged in federal court.

The lower federal court ruled in favor of Montana. On appeal, that was short lived.


On appeal, the 9th Circuit Court of Appeals ruled for the ravaging robocallers, agreeing that Montana had a compelling state interest of protecting personal privacy; however the law violated the First Amendment protection of free speech because the law regulated the content of the robocall messaging rather than regulating the time, place and manner of the calls.

The First Amendment does not allow restrictions of free speech that regulate the content of the message, versus how it is delivered. Reluctantly, I have to agree. Robocallers win another round.


The sole silver lining on this dark cloud was Footnote 8 in Victory Process v. Tim Fox, attorney general for the State of Montana, where the Court wrote: “If Montana had required all robocalls to be announced by a live operator, rather than imposing this requirement based on the topic of the robocall, our analysis may be different. California, for example, has addressed similar concerns about robocalls by requiring a live operator to obtain the consent of the person they call before playing a recorded message, regardless of the content of the message. See California Pub. Util. § 2874. Because this regulation was content-neutral, we … concluded that the statute was constitutional.”

I have never given a “live operator” my consent to conduct recorded messages, so is California not enforcing its law?

Attorney General Xavier Becerra, get on it.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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