a statute that regulates speech based on topic including specifically targeting political speech is unconstitutional the district court was correct in finding that the statute was a content based regulation of speech and therefore strict scrutiny applied however in concluding that this was one of those rare instances where a statute would with straight withstand strict scrutiny the district court erred under strict scrutiny the statutes presume to be statute was in fact unconstitutional that it did not satisfy strict scrutiny but then it was appealed there was no appeal taken but it was peeled and dismissed that it was no appeal appeal on attorney's fees once the district court had ruled on our motion so you're making the robo calls in miami we are grouted introductory percent correct and in many other states oh yes for the clear i think that you know every state has regulated robo calls in one form or form or another and what we've seen with the cases that have examined these state statutes  common thread is that when it's content neutral when it's done in a content neutral way the courts are finding that certainly the state has an interest in protecting residential privacy and that interest is substantial and they uniformly have up held those statutes however when they are content based the statutes have been struck down as was done in south carolina arkansas and wyoming that's where we are here today we have a content based statu and the state has failed to present any evidence that it has a compelling interest in regulating political speech among other three or four other topics differently than any other form of speech and they've also failed in showing that the statutes narrowly tailored to advance the interest so so if they said no robo calls it be ok if the statute was content neutral for example in indiana they have a statute that is a content neutral it says no robo calls it calls them all out flat out across the board and then allows for an exception in the event of a live for certain situations or allows calls to be made in certain situations assuming there proceeded by a live operator in indiana in the in the seventh circuit in the indiana case found that to be appropriate and i think that it that approach is consistent with what the ninth circuit has done with respect to california statutes the public utility statutes in california in bland versus fessler for example where it said you know if it's content neutral there's a substantial interest and the state has the state can regulate these calls and if we want to allow for some exception including a live operator it makes some sense  so i think yes certainly the state could regulate robo calls montana could do this but they need to do it in a constitutional manner in a way that is content neutral because i don't think that the statue can be shown to survive strict scrutiny montana's statute on its face does not show what its intended purpose was so the you just infer that it was residential privacy i don't know that it's appropriate to have it for what the what the intent of the legislature is well i think in a situation like this it's the government's burden to prove what its intent was or what its purposes and that it has a compelling winter some statements that they were concerned about privacy there was within the within the montana statute the legislative history there were some statements there was a single statement by it by one lawmaker that said there is an there's a right to privacy in this supports that that's really the only discussion of privacy there are from the sponsor of the bill there are multiple statements concerning the potential for automated calls to tie up phone lines at the time when an automated call was made and a person hung up it didn't automatically disconnect but at the time that would happen with normal phone calls sometimes of the individual on the other line whether it was an automated call or not if they didn't hang up back in one thousand nine hundred one that's that was just the result that's how telephone lines worked well now if you hang up and hang it stops i don't know if we can say that as a general matter but i think yes technology in the state some states have used automatic disconnect requirements for example that's that's a less plausible a plausible less restrictive alternative that we proposed both at the district court and here that would arguably address what the legislature said they were specifically concerned with which was this failure to disconnect so the state didn't really address or prove why that would not be an effective way of approaching their stated interest even if we assume that residential privacy is the state's interest and we assume that it rises to the level of compelling the state still hasn't shown that it's narrowly tailored there's you've called out five areas of speech if residential private is c is the concern why why are some robo robo calls on some topics acceptable while others are not it wouldn't make a difference with respect to privacy and for that matter if if you have a live operator on the other end of the line it doesn't it's there's kind of a question whether that really advance the interests of residents or privacy because once an individual has picked up the phone and they discover that oh it's a live operator it's not an automated message on the other end of the line presumably the intrusion has already occurred so i think that in those in those respects that there's been a failure to show that it's narrowly tailored along within the narrowly tailored analysis the government still needs to show that it is targeting the exact evil that they're attempting to address and here there were discussions within the montana legislative history about the proliferation of commercial sales calls there's no discussion about a problem concerning political calls or robo calls made for political purposes and so i think it's it's the burden is upon montana to show why they've called out political speech for differential treatment but there is actually i mean ask you a question on tha and all the other cases around the country in which robo calls have been an issue of all those courts applied the compelling state interest test them applied some form of intermediate in both both instances some some courts have applied when there has been a determination that it was a content based statute  in a content based manner they applied strict scrutiny and with respect to those state statutes they've been struck down when they've the courts have found that it was content neutral that it didn't call out speech based on topic they applied intermediate scrutiny and it's far as i know they have determined that there is a substantial interest under an immediate scrutiny in regulating robo calls for purposes of residential privacy  and that at times it's narrowly tailored even if you provide certain exceptions for preexisting relationships for example ok thank you than the other question i have yours when you deal with political speech by robocall does that raise the threat that if  limited robo calls or permitted that were political speech can't be singled out because then it's content based that are going to end up making the politics in our country more like a plutocracy democracy because the richest people can fund the most it's an interesting way of looking at it but i think that in some sense in some sense it's it's backwards because i think robo calls have been shown to actually be a cheap alternative or a cheap way to get message political messages or any any type of message widely disseminated it's a cheap it's actually a cheap technology to use as opposed to an expensive one that would be used by only the wealthy so that it's that i think it's certainly relevant that you 're sort of foreclosing this avenue but i think what the district court here did incorrectly in their decision they they kind of meshed together both intermediate scrutiny principles and strict scrutiny principles they they announced that they're applying strict scrutiny but then they analyze whether there's a ample ample alternative channels of communication and say that while the live operator essentially provides you and all you know there's alternative means of communicating with people you don't have to do it through robo calls but that's not a relevant factor under if you're dealing with a content based regulation subject to strict scrutiny and i think with the live operator you've seen the live operator it analyze both at the state level and under the t c p a the federal telephone consumer protection act and when the courts have analyzed the teeth the live operator provision they've they have found it to be a narrowly tailored method of regulating but only in the context of a content neutral statute one that has already called out everybody so they've said no robo calls can be made but if you couldn't if you fall under certain know what but you isn't really an injury here yes your honor and i think that victory processing the issue of standing was raised and briefed at the district court level and if you look standing there is part of the messaging that they do is for their own purpose and they've attested to the fact that they've engaged in self censorship which is a constitutionally recognized injury for person purposes of the first amendment and so when you apply sort of the traditional article three standing of injury causation redress ability certainly the self censorship that they've been gauged in and the tested to in the record provides the injury and then the causation of addressability are certainly triggered by the statute if the statute is struck down then it's redressed they've they've also argued that we don't meet the presidential limitation for third party standing but i think that the record indicates that we would meet that to think the state incorrectly says that that we have to show the the the factors from the case of the wason case and i think that there's actually a different analysis this that applies in the context of a first amendment case that was set out in the supreme court's case in the state of maryland versus months in company for sixty seven us nine forty seven where in order to have third party standing under the first amendment the point of just has to demonstrate that they have an injury in fact which is the self censorship here and if they can satisfactory satisfactorily frame the issues certainly a statute that is directed at companies like victory processing plaintiff who is a is a robocall or could satisfactory frame the issues that would be presented to the court in this challenge and so the state's argument with respect to standing has has no merit victories not merely a conduit they engage in their own speech but the statute is also overly broad and under months and victor processing would be able to assert the sort of the injury on behalf of those third parties as well ok if there's no further questions i'll reserve the rest of my time for rebuttal thank you can thank you good morning me please the court and pat riskin here on behalf of defendant fox in the state of montana counsel your honor to take the last point first on standing the point that we're making in this case is that we have an un d complaint that makes certain factual allegations regarding unknown third parties inability to make their speech to deliver their speech we have just heard about a case from outside of the ninth circuit wason was a first amendment case in our point here is that for the second and third prongs of the wason test we have no evidence this is not a rule twelve motion the victory brought this is a summary judgment row motion and under rule fifty six that's the time to test your claims and that's the time to test your allegations we tried to get that evidence we  d so all we had going into the district court hearing was the allegations of the complaint that have never been verified by anybody that's our point there's nothing to suggest that any of this speech is mr dies or victories they have knitted in the discovery that they did answer that it was not their speech that they don't have political speech they are a conduit in our in our view and then we have absolutely nothing to connect their complaints to these unnamed third parties we don't know who they are we could never follow up and so once again we are just we're just we have to settle for the allegations of an unverified complaint why do you need to know who the third parties are your honor honestly through the discovery process in the way that i pursue cases if i would have known i could have called at least one person asked is this really something that that happened to you it wouldn't it wouldn't necessarily be made public i would just like to know so i can verify the allegations in the complaint it's part of my discovery process in a lawsuit  that you know that's their business is to engage in this robo call that they did in the past that they are advised by the council that they can't do it unless they comply with the vote with the voice introduction correct and that's a did yes i'm sorry and they say that they would like to to do go forward they would like to do it again without the voice that ally voice and your honor that i  plaintiffs political speech it's somebody else's so the bringing the claim on behalf of somebody else's they have alleged and you know for that for that matter we don't contest that they probably have suffered that injury that prong of the wason case but we have nothing to back up this the other two prong counsel did this record and assess this issue under the standards for a and then the district court moved right into the strict scrutiny analysis so i can't tell you precisely what the district court did it's in the order i honestly  cannot tell you exactly what it said it was it was it was in and out real quick of that but thank you thank you now to get back to the the claims that are made here the only way to get to where victory wants to go is to consider this statute to be a ban and we've heard that time and time again in the briefing in this case and the only way to get to that point is to excise the last sentence of subsection two of montana statute scuse me which allows robo calls and recorded messages to be delivered  with the introduction by a live operator in it it's not topic specific what the district court pointed out to us all is that the montana statute when analyzed and we have to interpret this from top to bottom but when the montana statute is analyzed in total what we find is subsection one is pertinent to what we used to call cold calls there uninvited there is no relationship there may be no relationship these are unannounced unexpected subsection two which has some exceptions all involves a implied consent an existing business relationship something of that nature in which the call would not be totally unexpected but then at the very end of subsection two there is one sentence that says if the call is is roughly what it is if the call is introduced by a live operator that's going to be fine and so what it's done is it has and has the district pointed out the entire statute is based upon the consent of the call recipient either express or implied and the benefit to that as has been pointed out not me i'm getting into the narrow tailoring now but as as has been pointed out specifically in the van burgen case is the benefit of that  interaction with a live operator is that the call recipient now has some control they can question they can ask who is it what's it about they can reject it out of hand before they begin to hear the message they can reject it they can reject it and then they can take the additional step of saying please put me on the list that i don't want to hear this again because remember that if we're just listening  recorded message especially either you know it you're in car sales it could be it could be political campaign season when we're listening the that message it could come night after night after night you have an opportunity to talk to the operator and said i want to be on your list any more you could ask the operator for example i don't have time for it right now would you please put me on the list for some other time so that you could listen to it there's a variety campaign if you agree with the plaintiff that that the continent be restrictions on its face you did well we approached it in our briefing to the district court from both angles we we submitted to thirty look we look at that like for example subsection c which is soliciting information that's a really general statement if you look at all of them together i would submit to you your honor that what we're doing is we're we're really taking a look at virtually every type of speech that can be imagined here there's commercial there sales are solicitation polling information gathering and then finally a general statement about political activity it doesn't say it doesn't limit it to a particular campaign it doesn't limited to particular races it is a general statement so from once again from top to bottom the operation of the statute is content neutral that's the approach we took with the district court but even if you were to consider it to be a content based under read which says a commonsense approach to this is if it calls it out on the face of the statute  privacy and the compelling interest is an interesting isn't it one of the interesting issues in this case because it's one of these these situations that i would submit to you as developed over time the the cases that we take a look at from early on with regard to picking people standing on your sidewalk you know sound trucks that type of thing there's there's there's a variety of different cases  of the kerry case the frisbee case the kirkby case or all picketing cases the kovacs cases the sound trucks haul is door to door sales and these are all you know decades ago but then we get into the advancing technology that's involved in this particular arena and before i get there then we have mail i'm sorry i skipped over the e mail because we have holland we have consolidated edison and rowan i'm sorry and now that now the speech is beginning to get in your house it's not just picketers on the sidewalk now now it's in your home but it's fairly passive but then we find ourselves with the satterfield case the ninth circuit case from two thousand and nine wh specifically with the t c p and that was the first indication that this court considered this to be an invasion of privacy that there's a concern here with with individual residential privacy the shift that we find at this point is that now the sound is in your ouse now the now there's been an intrusion and really it's landing in your ear when you pick up your phone and so from that point forward and specifically from two thousand and seventeen have found this to be a compelling state interest because i would submit to you of the advancing technology that's involved here and there's got to be some control that's available to to the public and so the the state has an interest a compelling interest in providing that control to the recipient to the call recipient to the consumer that we agree with you that that there's the potential interest at stake here or a compelling the holly rutledge or in the camera what else the victory has cited there's also some some nuance that's involved some there's a there's a distinction that's been made that we can draw from the montana statute the last sentence of subsection two allows robo calls in any event call holly provided a live operator option only in certain circumstances that had nothing to do with political speech that was bare so it was over inclusive i believe that rutledge in arkansas didn't even provide for a live operator option in any event and judge jack this gets back to your questions about the wyoming case because the judge in wyoming thinks it is johnson i can't remember but he did he was following along quite nicely with this case with our case except when you got to the point he distinguished this except when you got to the point that there was no option for a live operator as was provided in the montana statute there was i believe with regard to commercial sales there was another statute that provided for a live operator option under very certain circumstances but once again it was it was determined to be over inclusive that was the distinguishing point of that and and  and it i got the sense from reading that case that he really wanted to go the same direction as we've done in this case be couldn't because that one allowance of a live operator was not present and counsel  asking one question so i make sure i understand this continent pacific content neutral issue if the seahawks wanted to try to sell tickets  o in montana when they have to have a live operator yes under this statute they would because there is no preexisting relationship with the my i'm assuming that other not prior season ticket holders and so there's no preexisting relationship there's nothing in subsection two that would allow that call based upon implied consent then let's say microsoft wanted to sell computer programs to people who hadn't already part because they do that not under the statute they couldn't because that would be that would be a cold call under whichever of the i can't remember which one it is with regard to soliciting sales i think it's the first subsection a this is a let's add part microsoft windows f over the computer this statute deals with telephonic transmission still ok so then the answers ok microsoft could you restate that your honor i'm sorry i'm still trying to understand if this is content specific or content neutral in light of all the categories of right people and companies can this requirement anybody make a robocall there that's not excluded in the statute your honor the only one i'm sorry you apologize for that the only one that i can think of is charity who charity it's the only one that i and perhaps that's because charity i keep eyes a special place in our security on our hearts i'm sorry begins at home therefore it begins at home perhaps that's it that's the only one that i can think of your honor is charity i think i would submit to you that everything else is covered under subsections one eighth from me and i see that my time has expired thank you oh we took you over your time with our questions oh no that's that that's fine we appreciate it  and with the case law that is that is keeping up with now we believe that the we would submit to the court that the district court's order was very thorough it explained the concept that consent aspect of this statute think your honor was follow up a couple points that the state made concerning standing for the kind of left off the the allegations in the complaint were all essentially verified through the affidavit that was presented by mr disha and again the affidavit demonstrates that the speech is in fact victories with respect to the content neutrality and the operation of this live operator provision we don't get to the need for a live operator and tell the content based regulation has already occurred you've already in the discussion with mr risk and it was identified that a charity wouldn't ever have to get to the live operator they could proceed with their robo calls without the need for one and so i think that right there is an indication that this is in fact a content based statute the example that you're providing with the seahawks i might suggest that they were calling know all the folks up in new england or something and harassing them rather than selling tickets they're just they're just trolling them with robo calls and you know talking about a game coming up but that wouldn't be prohibited under the statute because it would relate to sports and that has nothing to do with the five topics that are called out the state needs to provide that needs to show that the live operator exception is not just a an ok avenue to do it has to show under strict scrutiny that it's the least restrictive alternative available so that's where that comes in as a whether it's the least restrictive alternative for act when you're in strict scrutiny and the district court i think incorrectly states that the least restrictive alternative is not required and citing ward versus rock against racism but ward versus rock against racism was an intermediate scrutiny case it was a content neutral regulation and under intermediate scrutiny you don't have to have the least restrictive alternative but that's not the case in strict scrutiny cases so in terms of whether this is content based and those industry scrutiny is is one exception for believe believe so because you're still calling out select a select group for differential treatment and allowing charities even if they're the only ones to operate differently and you can do that if you had a compelling interest in doing so and you could show that you were narrowly tailored but it makes it a content based regulation is just allowing charities opens up a whole new doors box some charities may be actually political statements certainly i think here we're dealing with it with a group that engages in political speech but a charity would certainly engage in political speech as well so i see them out of time there are no other questions thank you and thank you  we appreciate the excellent argument both from montana council is that lincoln nebraska them wink wink and counsel we don't often have case shall be submitted and we'll get a decision to you in due course then i think that's it for today so therefore we will