The day after Election Day in November 2010, Robert Cahaly went to jail.
Cahaly is a Republican consultant based in Atlanta who does work in South Carolina. He drew the attention of South Carolina Law Enforcement Division over his use of robocalls—you know, the automated, pre-recorded phone calls voters get in the lead-up to elections that play recordings from candidates or ask poll questions.
Cahaly had a letter from the state’s attorney general saying everything he had done was kosher. But that wasn’t enough for law enforcement, and he turned himself in to authorities the day after the election to get booked.
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He was promptly released without bail and didn’t do any prison time. About two years later, the charges got dismissed. Then Cahaly sued—charging the law violated his First Amendment rights—and he won.
The outcome of that lawsuit, determined by the Fourth Circuit Court of Appeals, could change the way South Carolina primary voters hear from political candidates—just in time for the presidential primary election.
And that means the South Carolina’s “first in the South” primary—a crucial nominating contest, particularly in the GOP—is likely to become much, much messier.
At issue was a state law that specifically targeted political robocalls. The law mandated that said robocalls only communicate with voters by leaving messages on their answering machines; if voters answered the phone, the line would go dead and the recording wouldn’t play. This put robocalling politicians, consultants, and their affiliated outside groups in a bit of a bind, since getting the most bang for their automated-phoning buck meant they had to time phone calls for when people would be least likely to be at home.
Cahaly wanted to use automated calls to do polling for some state legislative races he was working on—and that meant talking to real, live voters, not answering machines. So he checked with the state attorney general’s office, got an OK in September of 2010, and went ahead with the robocall polling later that month.
Then law enforcement came after him, despite the word from the AG, and he turned himself in. Just shy of two years later—after his professional reputation weathered substantial damage (getting arrested will do that to you)—prosecutors finally relented, noting that “there may have been some constitutional issues with First Amendment rights,” according to The Post and Courier.
Cahaly agreed with that assessment, and leveled a civil suit charging that the law violated his First Amendment rights by zeroing in on political speech. In June 2014, per The State, a district court in Greenville took his side, holding that the ban on certain political robocalls unfairly singled out political speech and, thus, violated the First Amendment. And just a few days ago, a three-judge panel of the Fourth Circuit Court of Appeals upheld that ruling, tossing out the state’s law as unconstitutional.
So, buckle up. Because the law got overturned, the state now has no regulations on robocalls. While some states have banned robocalls entirely, and others—including New Hampshire—ban robocalls from going to people on the Do Not Call registry, the Palmetto State is now a phone-call free-for-all. In fact, due to another law being struck down in 2010, outside groups supporting a political candidate or cause don’t even need to disclose who is paying for the call.
South Carolina primaries were already crazy when it came to robocalls. Luke Byars, a Republican consultant based in Columbia, estimated that in the last two weeks before the 2008 primary election—when, like this cycle, numerous candidates duked it out for the state—likely Republican primary voters got between 50 and 75 robocalls. And that was before the rulebook got thrown out.
“With this new ruling, I think you could look to see that number greatly expand,” he said, “because it’s a very cheap, very easy way to get your message across. It drives voters crazy sometimes but it’s a very inexpensive way to get your campaign message out.”
And Katon Dawson, Rick Perry’s South Carolina state director and the former chairman of the state’s Republican party, said the ruling means the state’s phone wars will get wilder than ever.
“This means you can really take the gloves off,” he said. “You always need to tell the truth, but you can tell the dramatic truth on this, whether it be Donald Trump or Scott Walker or Jeb Bush or Rick Perry, whoever it is.”
The end of the robocall regulations will also likely expand the use of “push polls”—calls that begin with regular polling questions, but that soon spread negative information about opposing candidates.
The calls are often very cheap (as low as 2 cents per voter in South Carolina), and campaigns can sometimes go from recording one to having it in people’s phone lines in just 10 minutes. That makes them a favorite tactic for quickly responding to attacks.
This ruling means they’ll have even more opportunities to send primary voters pre-recorded messages of good cheer. Or, more likely, of ill will—the state has a history of turning politically ugly when candidates and allied groups take the cheapest possible shots at each other via telephone.
During the 2000 primary, for example, mysterious robocallers leveled scurrilous smears at John McCain. According to reports at the time, these included accusations that he had an fathered an illegitimate child with an African-American woman. McCain went on to lose the primary to George W. Bush.
But candidates have also used the tactic to push back against mudslinging; in 2010, Sarah Palin recorded a robocall defending then-candidate and now-Governor Nikki Haley against charges that she had had an affair.
The ruling means all that could likely expand.
“It gives you more room to advocate for or against a candidate,” Dawson said. “What it tells you is that it’s game-on using the telephones and using the airwaves even though people sometimes get disgusted with it.”
“If people don’t like them, make them all illegal,” said Cahaly, noting that the law didn’t pass constitutional scrutiny because it singled out calls of a political nature for extra regulation.
And the ruling drew praise from Republicans in the state, including Lieutenant Governor Henry McMaster.
“It’s always good to be sure the laws are constitutional, because that’s one of the main things that a legislature has to do, is be sure that the laws it passes are constitutional,” he said. “Turns out this one was not.”
Cahaly said he’s glad the ordeal seems to be finally over.
“Hopefully this opinion will serve to decriminalize political speech,” he said. “I’m a believer that the solution to attempts to control speech is more speech.”
