SC

Fourth Circuit: SC Robocall Ban Is Unconstitutional

FIRST AMENDMENT VICTORY … VINDICATION FOR PALMETTO CONSULTANT || By FITSNEWS || The U.S. Fourth Circuit Court of Appeals has upheld a lower court ruling striking down South Carolina’s ban on political robocalls … a decision which could have far-reaching implications on the 2016 “First in the South” presidential primary…

FIRST AMENDMENT VICTORY … VINDICATION FOR PALMETTO CONSULTANT

|| By FITSNEWS || The U.S. Fourth Circuit Court of Appeals has upheld a lower court ruling striking down South Carolina’s ban on political robocalls … a decision which could have far-reaching implications on the 2016 “First in the South” presidential primary in February as well as combative state legislative primaries in June.

The verdict – first reported on by Courthouse News Service – strikes down a 1991 state statute outlawing computerized phone calls “of a political nature including, but not limited to, calls relating to political campaigns” and subjected violators to thirty days in jail and a fine of $500.

These robocalls – a.k.a. “automatically dialed announcing devices,” or “ADADs” – are often used to deliver political messages to voters.

Wait … people still get political calls on their landlines?

Yes … and in South Carolina (where older voters dominate the GOP primary process) such calls can be incredibly effective.

Anyway, the Fourth Circuit ruling upholds a 2014 decision reached by U.S. District Court judge Michelle Childs – which found the South Carolina law was unconstitutional because it discriminated against political speech.

“The statute is fatal for its underinclusiveness and its singling out of commercial and political speech,” Childs ruled.

The Fourth Circuit (.pdf here) agreed, concluding that South Carolina’s anti-robocall statute “is a content-based regulation that does not survive strict scrutiny.”

Translation?  The First Amendment wins – state government’s attempt to suppress political speech loses.

Let that be a lesson to state lawmakers as the so-called “ethics reform” debate moves forward … a debate which has been notable thus far for its attempts to protect politicians from criticism.

The impetus for the Fourth Circuit ruling?  The November 2010 arrest of South Carolina political consultant Robert Cahaly – who has been vindicated on this issue for the second time in as many years.

Cahaly was busted by the S.C. State Law Enforcement Division (SLED) for a series of automated robocalls during the 2010 election – even though he obtained an advisory opinion from the S.C. attorney general’s office prior to producing the controversial calls which confirmed their legality.

Pushing for Cahaly’s arrest and prosecution at the time?  Former SLED chief Reggie Lloyd – who was closely affiliated to the political empire run by Richard Quinn, one of Cahaly’s consulting rivals.

Lloyd and SLED are named as defendants in Cahaly’s suit.

The state charges against Cahaly were dropped in 2012 after S.C. first circuit solicitor David Pascoe‘s office decided “there may have been some constitutional issues with First Amendment rights.”

Um … ya think?

Pascoe’s office inherited the case after S.C. attorney general Alan Wilson (shocker) recused himself.

Cahaly pressed the issue, though, seeking a verdict on the constitutionality of the law he allegedly “violated.”  He’s now won … twice.

Beyond the First Amendment victory (and the latest vindication of Cahaly), the Fourth Circuit ruling adds to the “Wild, Wild West” reputation of “First in the South” South Carolina when it comes to political tactics.  Now that campaigns know South Carolina’s anti-robocall statute is unconstitutional, we expect this medium to be utilized with increasing frequency in upcoming electoral cycles.

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82 comments

Cabals-R-Us August 18, 2015 at 10:24 am

Sounds like a “Cabal” of Sanford-FITSNews friends violating the Constitution.

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Todd August 18, 2015 at 10:29 am

Seriously? I can’t think of anything more worthy of a ban than robocalling. It should be banned for all, not just politicians. Those things are the reason there are no more land lines. People would rather cancel the service than subject themselves to being bothered by machines and foreign telemarketer scams.

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Speak D Truth August 18, 2015 at 10:33 am

Schools use robocalls for announcements on a regular basis. I would think that they could find a way to outlaw robocalls unless the person has signed up to receive them or unless they are from the government for public safety related issues…IE……reverse 911 calls or alerts if trouble develops at VC Sumner.

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The Colonel August 18, 2015 at 10:43 am

The form you sign when you provide the numbers/email grants the school system waivers to the laws regarding “robocalls”.

I hate the damn things passionately whether they’re from my kids school or a salesman/politician..

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Speak D Truth August 18, 2015 at 10:56 am

Agreed. They need to find a way to outlaw robocalls that prevents it from being an encroachment on free speech but preserves the use of them for public safety purposes.

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Nobama2016 August 18, 2015 at 11:20 am

That’s what the state tried to do with this law, and it was struck down by the courts. Our Constitution makes sure that political speech can weather the strictest of legal scrutiny.

It benefits only the political elites if we restrict political speech.

flip August 18, 2015 at 11:23 am

Yes indeed. Democrats are afraid of free speech and don’t want voters to be informed.

When voters are informed and educated on the issues, they vote as conservatives and for policies that are pro faith, family and country.

sparklecity August 18, 2015 at 12:02 pm

yeah, right.
If they have to rely on a telephone call to “inform voters’ who are too dumb for anything else, a “robocall” has succeeded in enlightening and educating the electorate for sure.
Family issues??
How about this;
How about politicians focusing on their own family and not worry about anybody else’s.

flip August 18, 2015 at 12:06 pm

Yeah dummy. Politicians never pass legislation that affects families in their communities,districts or state.

They should just propose and pass legislation that has to do with the POLITICIANS family.

Have you considered taking a class from our resident RINO, The Colonel, to become better informed?

sparklecity August 18, 2015 at 12:39 pm

That’s absolutely correct, they should not pass laws that affect families or their communities when it comes to social issues.. All they doing is attempting to legislate morality and all the while be hypocritical as hell while doing so.
Although “The Colonel” and I agree from time to time, I’m my own man (you know being an avowed Independent voter and all that – certainly not a sheeple like yourself).
There’s no difference between you and liberals when it comes to their particular political dogma

sparklecity August 18, 2015 at 11:56 am

I ain’t restricting shit. They can stand in the town circle or other public place, run ads,mailings, buy TV/radio ads till hell freezes over as far as I’m concerned and I will defend the right to do so.
Just don’t bother me on my private property which includes the telephone in my house.
Like I said, when the “robocalls” start flooding cellular and other wireless devices then another song will be sung.

Speak D Truth August 18, 2015 at 1:49 pm

If Obamacare and gay marriage can be ruled legal then there has to be a way for robocalls to be made illegal.

sparklecity August 18, 2015 at 11:13 am

Years ago I entered into the national “do not call” list on my and my parents phones and every elderly neighbor who wanted me to do that. I update it periodically and I can’t remember the last time we got a telemarketing call.
BTW: Have you read “Our Man In Charleston” by Christopher Dickey? I checked it out at the Spartanburg PUBLIC Library and was the first one to check it out – take that FITS!!!!)
Pretty good read for a summer/vacation book – it kinda drags from time to time but it was worth reading. Shows just how delusional South Carolinians in the low country (and most of the state for that matter) were in the years leading up to the Civil War.
Joe and Mika had Dickey on “Morning Joe” about a month ago and it peaked my interest.

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Nobama2016 August 18, 2015 at 10:47 am

Again I don’t like them anymore than anybody else does Todd, but if Free Speech isn’t the most important thing we have, do we have anything at all?

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sparklecity August 18, 2015 at 12:31 pm

Then you have to INSIST that ALL forms of communication (that includes cellular and other wireless devices) need to be included in political “robocalls” as well

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Free Speech August 18, 2015 at 3:10 pm

The politicians or their lackeys have the “free speech” to call me themselves. If it is a big enough issue that they just have to tell me about it, I’m sure they can pony up the cash to pay people to make human calls and not harass people with robocalls.

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Nobama2016 August 18, 2015 at 10:31 am

How about that, free speech wins, it’s always great to see the Constitution upheld. The first step to reclaiming all our rights from an intrusive government is winning battles like this! As much as I dislike getting robocalls, I love the Constitution and our basic rights so much more!

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The Colonel August 18, 2015 at 11:01 am

So “free speech” won here hunh? How about I come over to your house and stand in your front yard while spouting inanities about how Hillary is the greatest thing since sliced bread?

Not the same?

Sure it is. I own the phones in my home. I pay for the service from the phone company – I should have the right to “opt out” of this bovine excreta delivery system. In fact, we had done just that with S.C. Code Ann. § 16-17-446(A).

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Nobama2016 August 18, 2015 at 11:13 am

As long as you’re on the sidewalk that sounds good to me.

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The Colonel August 18, 2015 at 11:24 am

Oh Hell no, I’m gonna come stand on your front porch or your deck. The phone is in my den, not the sidewalk.

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Nobama2016 August 18, 2015 at 11:35 am

Have you heard the phrase “Your right to swing your arms ends just where the other man’s nose begins.” Colonel? Spreading a message from a phone or on the sidewalk is not the same as barging into your house shouting at your family.

easterndumbfuckistan August 18, 2015 at 11:40 am

Spreading a message from a phone or on the sidewalk is not the same as barging into your house shouting at your family.

When you PAY for a phone that’s on your person or in your house it’s exactly the same. Stay off MY THINGS.

easterndumbfuckistan August 18, 2015 at 11:40 am

Your free speech ends where my phone bill begins.

The Colonel August 18, 2015 at 11:44 am

Thank you for eloquently making my point.

sparklecity August 18, 2015 at 12:42 pm

I’ve got your “6” on this one Colonel…….

shifty henry August 18, 2015 at 1:08 pm

Does anyone know what was the “greatest thing” before we had sliced bread?

RogueElephant August 19, 2015 at 8:23 am

You mean there was a “before sliced bread” ? WOW I’m not as old as I thought. LOL

DING DING DING!!! August 18, 2015 at 2:03 pm

ABSOLUTELY! The phone line going into your house and the phone connected to it is all PRIVATE PROPERTY!

sparklecity August 18, 2015 at 11:50 am

The fuck it ain’t
As far as I’m concerned the right to free speech ends at the threshold of my private property

sparklecity August 18, 2015 at 11:35 am

You do know that for most people the phone rings INSIDE the house don’t you?
Any other medium can be accessed at the individuals leisure and choosing (print, TV/radio, mailings,etc.). Before the advent of opting out or turning off the ringer (of which I have done both in the past and certainly will do this time) the person has lost the right to privacy and not being bothered.

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Free Speech August 18, 2015 at 2:02 pm

If he wakes you up at 3 AM shouting at your window I bet you’ll call the cops for disturbing the peace.

Why can’t we consider excessive unwanted robocalls disturbing our peace?

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MyrtleMan74 August 18, 2015 at 10:40 am

Isn’t that the same Reggie Lloyd that lobbied for Online Poker in SC State? What a gem he must be.

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TheGirlBureaucratsWarnedAbout August 18, 2015 at 10:43 am

Good to see that an unconstitutional law that does nothing, except protect politicians has finally been struck down using common sense. Political Speech is guaranteed under the first amendment and if you want to send out a call and let the voters know how bad a politician is, you should be able to. Limiting this cost effective tool, would only be letting BIG MONEY, CAREER POLITICIANS have the advantage over citizens likes us. I’m glad it was struck down in the name of FREE SPEECH!!!!

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shifty henry August 18, 2015 at 10:56 am

“Just a girl who’s tired of being creeped on by young guys at bars and old men in .. ??”
old men in what ? —- white shoes with black, knee-high socks/ flowered beach shirts/ toupees with pompadours..???

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TheGirlBureaucratsWarnedAbout August 18, 2015 at 11:07 am

Perhaps if you could read/comprehend sentences and not go to discussion forums to creep on and harass women, you could be more beneficial to society and not have to post ridiculous, fake pictures to hide your hideous face.

I’ve noticed that you didn’t comment something like that to any of the men on here, so thanks for being a sleaze and trying view my profile, simply because I’m a woman, and comment something that doesn’t make sense to my comment or the article.

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The Colonel August 18, 2015 at 12:09 pm

“…I’ve noticed that you didn’t comment something … that doesn’t make sense to my comment or the article…”

New to FitsNews I take it?
We are a conglomeration of “equal opportunity harrassers” from all walks of life, levels of the socioeconomic scale, wings of the political environment and the full spectrum of educational achievement. Don’t take it personally, unless the shoe fits.

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RogueElephant August 18, 2015 at 12:31 pm

I had a friend where I previously worked, that when I mashed my finger, he came over, put his arm around my shoulder and said, as compassionately as he could : If you are going to be stupid you gotta be tough. LOL

shifty henry August 18, 2015 at 1:06 pm

Rogue, I hope you weren’t mashing your finger every day!

RogueElephant August 19, 2015 at 8:16 am

Just once. But there were enough friends / co workers around to make it embarrassing as well as funny.

shifty henry August 18, 2015 at 12:11 pm

Well, your blurb was incomplete in that it ended in “old men in..” I was curious about what these “old men” were in that was so offensive to you. Also, I don’t know what “being creeped on” means to you. Your reply to me saying that I “creep on and harass” you is an indication of your insecurity.

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flip August 18, 2015 at 12:18 pm

GT is the conservative brain/engine of ‘Fits Love Train’ but shifty henry is a good hearted LEGEND.

Like Bobby Knight once told Connie Chung in a CBS ‘gotcha’ interview ‘”I think that if rape is inevitable, relax and enjoy it’…

shifty just raped your ignorant,intolerant brain.

Relax lady.All in fun.

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sparklecity August 18, 2015 at 11:39 am

Free speech stops when it encroaches on my property.
Plain and fucking simple

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easterndumbfuckistan August 18, 2015 at 11:42 am

Your rights end where my phone bill begins. Wanna robocall me? Pay my phone bill.

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sparklecity August 18, 2015 at 12:04 pm

10XXXX!!!

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Amen! August 18, 2015 at 2:00 pm

More than just my phone bill, what about interrupting dinner, waking up the baby, and so on?

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FastEddy23 August 18, 2015 at 2:17 pm

Those making big bucks from selling phone lists: ATT, democrat party, too many Pump-N-Dump brokers, too many Pump-N-Dump charities, too many too many Poli-Wogs, …

We should all send Them a bill. I say half.

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shifty henry August 18, 2015 at 1:04 pm

“thegirlbureaucratswarnedabout” — Would you please explain what the “warning” is — I didn’t receive that call.

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mamatiger92 August 18, 2015 at 1:58 pm

This has nothing to do with free speech.

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Lee Atwater's Ghost August 18, 2015 at 10:44 am

I know that GOP voters tend to be on the slow side, but what empirical evidence do you have that robocalls can be “incredibly effective?”

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shifty henry August 18, 2015 at 10:51 am

Not for me …

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The Colonel August 18, 2015 at 10:54 am

They generally tend to make me want to support “the other guy”.

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sparklecity August 18, 2015 at 11:30 am

Usually by the time the primary rolls around I’ve already made up my mind who to vote for so their call is a waste of time.
Like I said, I’m turning off my ringer when primary season rolls around

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sparklecity August 18, 2015 at 11:28 am

Same here. If it is a “live person” I have my way with them.
Most of them are volunteers anyway so after a few rations of shit from people who want to tie them up maybe they will quit and go home.

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Rocky Verdad August 18, 2015 at 2:55 pm

John McCain – George W Bush – 2000 – South Carolina primary. How’s that.

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The Colonel August 18, 2015 at 10:45 am

“…Wait … people still get political calls on their landlines?

Yes, some of us sure do and to make it worse, I’m starting to get the damn things on my cell.

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shifty henry August 18, 2015 at 10:50 am

Yes, on my cell phone — but those that are annoying get one of my special programs.

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CNSYD August 18, 2015 at 10:58 am

Yep. Apparently the court has decided that we do not have the right to be left alone. Another new trick, calls from area codes and/or numbers that don’t exist. You call them right back and get a recording that the number is not in service.

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shifty henry August 18, 2015 at 11:17 am

Another — calls from another state but routed through your area code to appear its a local call.

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The Colonel August 18, 2015 at 11:23 am

We’ve just taken to not answering the phone for any number we don’t recognize. The legitimate callers leave a message. A trick I use on occasion is to not say anything after answering. Most of time I pick up the phone but don’t say anything – if the caller doesn’t say anything I just hang up.

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Col.Flagg August 18, 2015 at 11:26 am

You sure are sharp ‘Colonel’! I would have never thought of that.
What do you say if they ask ‘ What’s the frequency, Kenneth’?

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The Colonel August 18, 2015 at 11:43 am

I give them your number.

Many of the robocalls use voice recognition and don’t begin their spiel until you say something – like “Hello?” By not saying anything, I don’t trip the call to begin “spieling”. A legitimate caller would say “hello?” when they hear the phone pick up but get no response.

Col.Flagg August 18, 2015 at 12:25 pm

(202)863-8000

I called and you didn’t answer.Next time I will say “hello: and you say “bernie”.

The Colonel August 18, 2015 at 12:34 pm

Funny

shifty henry August 18, 2015 at 12:16 pm

‘not say anything after answering; — done that too, it sort of bugs them, but I’m never impolite to a person.

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sparklecity August 18, 2015 at 11:42 am

I’ve read in reputable articles that if you return certain numbers (as you mention) on your cellular or other wireless device you will find a big fat toll charge on your next wireless bill.

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sparklecity August 18, 2015 at 11:25 am

As they should.
I have a cell myself and a landline. They don’t give shit about the old farts (like you and I) getting aggravated because like the article mentioned. old Caucasian farts who come out in droves to vote in primaries is who they are targeting.
I say let the flood gates open for tying up cell and other wireless devices and then see who starts to howl.
That shit will slow down (maybe even go away) then.

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Moore,SC Homeless Shelter August 18, 2015 at 11:29 am

sparkle you know we don’t have a landline at the shelter.

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sparklecity August 18, 2015 at 11:46 am

Trying to fuck with me ain’t gonna work————all you are doing is wasting valuable electrons and keystrokes………

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Ms.Ratched/Shelter Director August 18, 2015 at 11:58 am

Clean your damn room before we protest outside of it!

sparklecity August 18, 2015 at 10:54 am

If the SC politicians had any balls they would provide a provision to “opt out” of calls like you can do with the “do not call list” which damn near eliminated telemarketing calls or let the phone line operator charge 10 cents per call to fund the political “opt out” list
What ever happened to the right to privacy in your home. I know, I know, on all modern landline phones you can turn the ringer off (which is exactly what I will be doing during the primary season)
Better yet, since the number of landlines IS decreasing it only seems right that they ought allow robocalls to cellular and other wireless devices.
Then let’s see how FITS feels about it!!!!!

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Nölff August 18, 2015 at 10:55 am

Robots shouldn’t have rights. That whole Terminator Skynet thing might happen.

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Tom August 18, 2015 at 10:58 am

If Corporations are people I suppose robots can be people.

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MarkyMarkAndTheDontTaxMeBunch August 18, 2015 at 10:56 am

I don’t know about y’all, but I’m not one for the government trying to tell me what I can and cannot say. These UNCONSTITUTIONAL “LAWS” that restrict free speech, are passed by the same people kind of politicians who refuse to pass Haley’s Ethics Reform, but conveniently find the time to raise our gas tax.

My family is happy see this unconstitutional law was struck down. After they took our flag down, it’s good to see free speech finally gets a victory in Obama Land, I mean South Carolina..

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Tom August 18, 2015 at 11:16 am

I still have a land line, but I have caller ID and I never pick it up unless I know who is calling. That is generally effective. The best answer is to allow people to put their phon numbers on a do not call list.

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PalmettoElephant August 18, 2015 at 11:29 am

Glad to see this law struck down. Laws like this are only put in place to bottleneck our free speech while protecting the political elite and career politicians.

While some would argue the Second Amendment only gives handguns and rifles to the citizens fighting off government tanks the same could be said of a robocall. It is not the same as a commercial, but it gives citizens a fighting chance to get the truth out.

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The Colonel August 18, 2015 at 11:46 am

If you want to get on the “do not call” registry, here’s the link: https://www.donotcall.gov/

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loisdeboid August 18, 2015 at 12:28 pm

I’ve been on this list for years and keep it updated. It used to work beautifully, but now It is now a joke. I’m convinced the GDNC department is now staffed by one 90 yr old computer-illiterate government employee with 1000 file cabinets full of complaints that he/she is solely responsible for.

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RogueElephant August 18, 2015 at 12:37 pm

The real news here is Cahaly actually won something. LOL

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MyrtleMan74 August 18, 2015 at 1:22 pm

I’m interested to see how this ruling will affect the primary in February. Are there any restrictions on political robocalling in the state?

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Kickin' Chicken August 18, 2015 at 1:47 pm

Unfortunately, the Do Not Call Registry only applies to sales calls. It does not prohibit political calls, charitable calls, debt collection calls, informational calls, and telephone survey calls.

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Freedom to Harass Citizens August 18, 2015 at 1:58 pm

How can we have a Do Not Call registry if calls like these aren’t considered harassment and therefore unprotected by the First Amendment?

How many times do we have to be called before we can call the police?

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