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Media Alerts - Maryland v. Universal Elections, Inc. - Fourth Circuit
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November 12, 2013
  Maryland v. Universal Elections, Inc. - Fourth Circuit
Headline: Fourth Circuit Affirms $1,000,000 Judgment Against Political Consultant to Former Maryland Governor

Area of Law: Constitutional Law

Issue Presented: Whether the Telephone Consumer Protection Act ("TCPA") and its implementing regulations violate the First Amendment.

Brief Summary: Before the 2010 Maryland gubernational election, Republican candidate Robert Ehrlich hired Julius Henson and his company, Universal Elections, to help with the campaign. In an attempt to suppress the Democratic vote in specific areas of the state, Henson authorized the delivery of an automated, prerecorded telephone message, or "robocall," to 112,000 Democrats. The message implied that the recipients did not need to vote. This robocall did not identify the campaign sponsor, nor did it provide the campaign telephone number. Both omissions violated the Telephone Consumer Protection Act ("TCPA"). Henson argued that the TCPA is unconstitutional. The district court disagreed and entered a judgment against Henson and Universal Elections in the amount of $1,000,000. The United States Court of Appeals for the Fourth Circuit affirmed the judgment.

Extended Summary: Republican candidate Robert Ehrlich hired political consultant, Julius Henson and his company, Universal Elections, to help with the 2010 Maryland gubernational election. Henson authorized Universal Elections employee, Rhonda Russell, to compose a pre-recorded telephone message ("robocall") to send to a targeted group of Democratic voters.

On Election Day 2010, Russell sent the robocall to 112,000 Democrats in Prince George's County and Baltimore City, both predominately African-American communities. The robocall stated in its entirety:

"Hello. I'm calling to let everyone know that Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We're okay. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you."

The message provided neither the sponsor of the message (Robert Ehrlich), nor the campaign's telephone number. Both of these omissions violated the Telephone Consumer Protection Act ("TCPA"). The TCPA requires the disclosure of the sponsor of such messages to prevent misleading or fraudulent calls, protect residential privacy, and allow callers to stop receiving such calls. The district court determined the TCPA was constitutional, and found Universal Elections, Henson, and Russell all jointly and severally responsible for the violations. A $1,000,000 penalty was imposed on Henson and Universal Elections, and a $10,000 penalty was imposed on Russell.

On appeal, Henson argued that the district court erred by finding that the TCPA is constitutional when applied to political robocalls. Specifically, he argued that the TCPA was a burden on the freedom of speech that violated the First Amendment. When determining the constitutionality of a regulation such as the TCPA, a court first considers whether the regulation is content-based or content-neutral. If the regulation is content-based, it receives the highest standard of constitutional review, strict scrutiny. It is very rare for a regulation to pass strict scrutiny and be determined constitutional. Conversely, if the regulation is content-neutral, it is scrutinized under a lower standard, intermediate scrutiny.

Henson argued that the TCPA was a content-based regulation of political messages, and therefore was entitled to the most rigorous constitutional review. The Fourth Circuit disagreed and found that the district court properly determined that the TCPA was a content-neutral regulation. The Court held that the regulation requiring automated telephone messages to disclose the sponsor and telephone number applied without regard for whether the message was political - meaning it is a content-neutral regulation. The Fourth Circuit affirmed the constitutionality of the TCPA, and affirmed all penalties against Henson, Universal Elections, and Russell for the violation of the regulation.

To read the full opinion, please visit:
http://www.ca4.uscourts.gov/Op...ublished/121791.P.pdf

Panel: Judges King, Agee, and Norton

Date of Issued Opinion: 09/05/2013

Docket Number: No. 12-1791

Decided: Affirmed

Case Alert Author: Daniel F. Tavares

Counsel: ARGUED: Edward Smith, Jr., LAW OFFICE OF EDWARD SMITH, JR., Baltimore, Maryland, for Appellants. William D. Gruhn, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Douglas F. Gansler, Attorney General, Philip D. Ziperman, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee State of Maryland. Rod J. Rosenstein, United States Attorney, Stuart F. Delery, Acting Assistant Attorney General, Mark B. Stern, Mark R. Freeman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United States.

Author of Opinion: Judge Norton

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/12/2013 10:53 AM     4th Circuit  

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