PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1651

ROBERT C. CAHALY,

Plaintiff – Appellee,

v.

PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW 

ENFORCEMENT DIVISION,

Defendants – Appellants.

No. 14-1680

ROBERT C. CAHALY,

Plaintiff – Appellant,

v.

PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW 

ENFORCEMENT DIVISION,

Defendants – Appellees.

Appeals from the United States District Court for the District 

of South Carolina, at Greenville. J. Michelle Childs, District 

Judge. (6:13-cv-00775-JMC)

Argued: March 25, 2015 Decided: August 6, 2015
2

Before WYNN, DIAZ, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded with 

instructions by published opinion. Judge Diaz wrote the 

opinion, in which Judge Wynn and Judge Thacker joined.

ARGUED: Kenneth Paul Woodington, DAVIDSON & LINDEMANN, P.A., 

Columbia, South Carolina, for Appellants/Cross-Appellees. 

Samuel Darryl Harms, III, HARMS LAW FIRM, PA, Greenville, South 

Carolina, for Appellee/Cross-Appellant. ON BRIEF: Robert D. 

Cook, Solicitor General, OFFICE OF THE ATTORNEY GENERAL, 

Columbia, South Carolina; William H. Davidson, II, DAVIDSON & 

LINDEMANN, P.A., Columbia, South Carolina, for Appellants/CrossAppellees.
3

DIAZ, Circuit Judge:

Robert C. Cahaly, a self-described Republican political 

consultant, was arrested for alleged violations of South 

Carolina’s anti-robocall statute. After the charges were 

dismissed, Cahaly filed suit, challenging the statute on three 

First Amendment grounds: as an unlawful regulation of speech, as 

impermissibly compelling speech, and as unconstitutionally 

vague. Cahaly also sought damages from the law enforcement 

officials involved in his arrest (and the agency employing 

them), advancing claims under 42 U.S.C. § 1983 and state law for 

false imprisonment and malicious prosecution.

Under the content-neutrality framework set forth in Reed v. 

Town of Gilbert, 135 S. Ct. 2218 (2015), we find that the antirobocall statute is a content-based regulation that does not

survive strict scrutiny.1 We also hold that Cahaly lacks 

standing to bring compelled-speech and vagueness challenges, and 

that his other claims fail due to the presence of probable cause

to arrest him. As a result, we affirm the district court’s 

judgment except for the compelled-speech claim, which we vacate 

and remand with instructions to dismiss it.

 1 We received supplemental briefs from the parties on the 

import of Reed to the issues on appeal.
4

I.

A.

In 1991, the South Carolina General Assembly enacted a 

statute regulating automated telephone calls that deliver 

recorded messages, or “robocalls.”2 This statute places 

different restrictions on robocalls depending on whether they 

are (1) unsolicited and (2) made for consumer, political, or 

other purposes. By definition, it prohibits only those 

robocalls that are “for the purpose of making an unsolicited 

consumer telephone call” or are “of a political nature 

including, but not limited to, calls relating to political 

campaigns.” S.C. Code Ann. § 16-17-446(A).

All qualifying robocalls are banned with three exceptions, 

based on the express or implied consent of the called party:

(1) in response to an express request of the person 

called; (2) when primarily connected with an existing 

debt or contract, payment or performance of which has 

not been completed at the time of the call; (3) in 

response to a person with whom the telephone solicitor 

has an existing business relationship or has had a 

previous business relationship.

Id. § 16-17-446(B). If an exception applies, the permitted 

robocall must “disconnect immediately when the called party 

hangs up”; must be made between 8:00 AM and 7:00 PM; and “may 

 2 The statute refers to robocalls as “Adad calls,” which 

stands for “automatically dialed announcing device.” S.C. Code 

Ann. § 16-17-446 (2014).
5

not ring at hospitals, police stations, fire departments, 

nursing homes, hotels, or vacation rental units.” Id. § 16-17-

446(C)(2)-(4). Some permitted robocalls must also disclose 

certain information to the called party: “(1) the identity of 

the seller; (2) that the purpose of the call is to sell goods or 

services; [and] (3) the nature of the goods or services.” Id.

§§ 16-17-445(B)(1)-(3), -446(C)(1).

Other statutory provisions contain rules for live 

solicitors making unsolicited consumer telephone calls. 

Solicitors must place their calls from 8:00 AM and 9:00 PM, make 

certain disclosures, and maintain a do-not-call list. Id.

§§ 16-17-445(B)-(E).

A violation of the statute constitutes a misdemeanor 

offense. Id. § 16-17-446(D) (cross-referencing § 16-17-445(F)). 

A first or second conviction carries a maximum punishment of a

$200 fine or 30 days in prison while a third or later conviction 

carries a fine of $200 to $500 or the same maximum 30 days’ 

imprisonment. Id.

B.

On September 23, 2010, Cahaly allegedly placed robocalls in 

six South Carolina house legislative districts. With the name 

changed to reflect the Democratic candidate in each district, 

the calls’ prerecorded message said:

Please hold for a one-question survey.
6

As you may have heard, Speaker of the House Nancy 

Pelosi is coming to South Carolina.

Do you think incumbent Democrat Anne Peterson Hutto 

should invite her fellow Democrat Nancy Pelosi to come 

campaign for her?

Press 1 if you think incumbent Democrat Anne Peterson 

Hutto should invite her fellow Democrat Nancy Pelosi 

to come and campaign for her.

Press 2 if you think incumbent Democrat Anne Peterson 

Hutto should not invite her fellow Democrat Nancy 

Pelosi to come and campaign for her.

J.A. 219-20.

About one week before the calls were placed, an attorney 

with the South Carolina Office of the Attorney General told

Cahaly that the anti-robocall statute did not cover “automated 

telephone survey polls of a political nature.” J.A. 74. The 

attorney encouraged him to ask a member of the state House of 

Representatives to seek a written opinion to that effect. A 

representative made that request, and the Attorney General 

issued a letter, the day before Cahaly made the robocalls, 

stating:

In the opinion of this office, organizations, such as 

Survey USA, may routinely conduct automated survey 

telephone calls for political purposes in this State 

that require the recipient’s responses via a phone 

key. The purpose of the ADAD law is to prohibit the 

unwarranted invasion by automated dialing devices in 

order to promote advocacy of a “product” including a 

particular candidate. Thus, as long as these polling 

calls, even if they are of a political nature, do not 

advocate a particular political candidate but simply 
7

obtain a “snapshot” opinion of a voter, they may be 

made.

J.A. 83.

The day after Cahaly placed the robocalls, an incumbent 

seeking reelection in one of the targeted districts wrote to the 

South Carolina Law Enforcement Division (“SLED”) reporting that 

her constituents had received telephone calls that violated the 

anti-robocall statute. Over the next three weeks, Democratic 

candidates in the other five districts also reported to SLED 

that their constituents had received the same calls using their 

names.

On November 1, 2010, a state magistrate judge issued six 

warrants--one for each targeted district--for Cahaly’s arrest. 

The election was held November 2. That same day, SLED issued a 

press release announcing the warrants. On November 3, Cahaly 

turned himself in, was booked, and was released on his own 

recognizance. The warrants were dismissed eighteen months 

later.

C.

Cahaly filed a complaint in state court against SLED; Paul 

C. LaRosa, III, a special agent with SLED who completed the 

arrest warrant applications; and Reginald I. Lloyd, the director 

of SLED at the time of Cahaly’s arrest (collectively, the 

“Defendants”). Cahaly sought a declaration that the anti-
8

robocall statute was unconstitutional and an injunction 

prohibiting the Defendants from enforcing it. He also alleged a 

damages claim under 42 U.S.C. § 1983 and state law claims for 

false imprisonment and malicious prosecution.

The Defendants removed the case to federal court. Cahaly 

moved for partial summary judgment on his claim for declaratory 

and injunctive relief. The Defendants moved for summary 

judgment on all claims.

The district court granted Cahaly’s motion, declared the 

anti-robocall statute unconstitutional, and issued a permanent 

injunction barring enforcement of the statute. The district 

court concluded that the statute was a content-based restriction 

on speech and applied strict scrutiny. Under that rubric, the 

court found the statute unconstitutional due to “its 

underinclusiveness and its singling out of commercial and 

political speech” when the asserted government interest was to 

eliminate nearly all robocalls to protect residential privacy. 

Cahaly v. LaRosa, 25 F. Supp. 3d 817, 827 (D.S.C. 2014). The 

court also determined that the statutory provision requiring 

robocalls to disclose certain identifying information was

unconstitutional as compelled speech, but that Cahaly lacked 

standing to bring his vagueness challenge.

The district court awarded summary judgment to the 

Defendants on Cahaly’s other claims. The court held that LaRosa 
9

and Lloyd were entitled to qualified immunity on the § 1983

claim because the right at issue was not clearly established. 

The court also held that the existence of probable cause to 

arrest Cahaly defeated his false imprisonment and malicious 

prosecution claims.

The Defendants appeal the district court’s judgment

granting declaratory and injunctive relief. Cahaly crossappeals the district court’s judgment on his damages claims. We 

review de novo the district court’s order granting summary 

judgment and its ruling that a party lacks standing. Brown v. 

Town of Cary, 706 F.3d 294, 300 (4th Cir. 2013).

II.

We begin with Cahaly’s First Amendment claim. First, we 

consider whether the anti-robocall statute is a content-neutral 

restriction on speech subject to intermediate scrutiny or a 

content-based restriction that must withstand strict scrutiny. 

We then turn to whether the statute’s mandatory disclosure 

provision constitutes compelled speech. Lastly, we reach 

Cahaly’s vagueness challenge. As explained below, we hold that 

the statute is content based and does not survive strict

scrutiny, and that Cahaly lacks standing to bring his compelledspeech and vagueness challenges.
10

A.

The Supreme Court recently clarified the content-neutrality 

inquiry in the First Amendment context. In Reed, the Court 

explained that “the crucial first step in the content-neutrality 

analysis” is to “determin[e] whether the law is content neutral 

on its face.” 135 S. Ct. at 2228. At the second step, a

facially content-neutral law will still be categorized as 

content based if it “cannot be ‘“justified without reference to 

the content of the regulated speech,”’ or . . . adopted by the 

government ‘because of disagreement with the message [the 

speech] conveys.’” Id. at 2227 (quoting Ward v. Rock Against 

Racism, 491 U.S. 781, 791 (1989)).

This formulation conflicts with, and therefore abrogates, 

our previous descriptions of content neutrality in cases such as 

Brown v. Town of Cary. See 706 F.3d at 303 (“[I]f a regulation 

is ‘justified without reference to the content of regulated 

speech,’ [citation omitted] ‘we have not hesitated to deem 

[that] regulation content neutral even if it facially 

differentiates between types of speech.’”) (quoting Wag More 

Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 366 (4th Cir. 

2012) (last alteration in original)). Our earlier cases held 

that, when conducting the content-neutrality inquiry, “[t]he 

government’s purpose is the controlling consideration.” 

Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th 
11

Cir. 2013) (quoting Ward, 491 U.S. at 791). But Reed has made 

clear that, at the first step, the government’s justification or 

purpose in enacting the law is irrelevant. 135 S. Ct. at 2228-

29.

Applying Reed’s first step, we find that South Carolina’s 

anti-robocall statute is content based because it makes content 

distinctions on its face. Reed instructs that “[g]overnment 

regulation of speech is content based if a law applies to 

particular speech because of the topic discussed or the idea or

message expressed.” 135 S. Ct. at 2227. Here, the antirobocall statute applies to calls with a consumer or political 

message but does not reach calls made for any other purpose. 

Because of these facial content distinctions, we do not reach 

the second step to consider the government’s regulatory purpose. 

See id. at 2228 (“[A]n innocuous justification cannot transform 

a facially content-based law into one that is content neutral.”)

As a content-based regulation of speech, the anti-robocall 

statute is subject to strict scrutiny. Id. at 2231. Under this 

standard, the government must prove “that the restriction 

furthers a compelling interest and is narrowly tailored to 

achieve that interest.” Id. (quoting Ariz. Free Enter. Club’s 

Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)). “If 

a less restrictive alternative would serve the [g]overnment’s 

purpose, the legislature must use that alternative.” United 
12

States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). 

Moreover, the restriction cannot be overinclusive by 

“unnecessarily circumscrib[ing] protected expression,” 

Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002) 

(quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)), or

underinclusive by “leav[ing] appreciable damage to [the 

government’s] interest unprohibited,” Reed, 135 S. Ct. at 2232

(quoting White, 536 U.S. at 780).

The asserted government interest here is to protect 

residential privacy and tranquility from unwanted and intrusive 

robocalls. Assuming that interest is compelling, we hold that 

the government has failed to prove that the anti-robocall 

statute is narrowly tailored to serve it. Plausible less 

restrictive alternatives include time-of-day limitations, 

mandatory disclosure of the caller’s identity, or do-not-call 

lists. See Maryland v. Universal Elections, Inc., 729 F.3d 370, 

376 (4th Cir. 2013) (evaluating the federal Telephone Consumer 

Protection Act’s identity disclosure requirement); Nat’l Fed’n 

of the Blind v. F.T.C., 420 F.3d 331, 333-34 (4th Cir. 2005) 

(examining a federal regulation that “requires callers to make 

certain disclosures, refrain from making late-night, earlymorning, and ‘abandoned calls’ (calls followed by silence), and 

comply with a . . . ‘do-not-call list’”); Van Bergen v. 

Minnesota, 59 F.3d 1541, 1551 (8th Cir. 1995) (considering 
13

Minnesota’s ban on robocalls from 9 PM to 9 AM). The government 

has offered no evidence showing that these alternatives would 

not be effective in achieving its interest.

In addition, the record contains evidence that the antirobocall statute is overinclusive. The Defendants themselves 

cite to a report from a U.S. House of Representatives committee 

that concluded, “Complaint statistics show that unwanted 

commercial calls are a far bigger problem than unsolicited calls 

from political or charitable organizations.” H.R. Rep. 102-317, 

at 16 (1991). Yet the statute also targets political calls.

At the same time, the statute suffers from

underinclusiveness because it restricts two types of robocalls--

political and consumer--but permits “unlimited proliferation” of

all other types. Reed, 135 S. Ct. at 2231; see id. (“The Town 

cannot claim that placing strict limits on temporary directional 

signs is necessary to beautify the Town while at the same time 

allowing unlimited numbers of other types of signs that create 

the same problem.”).

Because the statute does not pass muster under strict 

scrutiny, we affirm the district court’s judgment declaring it

unconstitutional.

B.

Turning to Cahaly’s compelled-speech challenge, if 

robocalls are permitted because they fall within one of the 
14

three exceptions listed in Section 16-17-446(B), then the 

statute requires those calls to disclose “(1) the identity of 

the seller; (2) that the purpose of the call is to sell goods or 

services; [and] (3) the nature of the goods or services.” S.C. 

Code Ann. § 16-17-446(C)(1) (cross-referencing § 16-17-

445(B)(1)-(3)). The district court ruled that these mandatory 

disclosures unconstitutionally compel speech. The Defendants 

contend this ruling is in error due to the absence of a case or 

controversy, a jurisdictional prerequisite under Article III of 

the U.S. Constitution. We agree.

One requirement of Article III standing is that the 

plaintiff suffer an “injury in fact.” Susan B. Anthony List v. 

Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992)). While “actual 

arrest or prosecution” for violating a statute establishes an 

injury in fact, Steffel v. Thompson, 415 U.S. 452, 459 (1974), 

so too may a “credible threat of prosecution thereunder.” 

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 

(1979).

As the Defendants note, Cahaly was not charged with 

violating Section 16-17-446(C)(1), the disclosure provision, 

despite the affidavits submitted to the magistrate judge 

alleging that Cahaly’s robocalls “failed to promptly disclose in 

a clear and conspicuous manner to the receiver of the call the 
15

identity of the originating party, endorsement of a candidate 

and or [sic] the nature of the call.” J.A. 237-42. Rather, he 

was charged solely with violating Sections 16-17-446(A)-(B), 

which ban political robocalls outright. In addition, the 

affidavits do not allege any facts about Cahaly’s relationship 

to the called parties, but the called parties’ express or 

implied consent to being called is a necessary condition for the 

disclosure provision to apply. See S.C. Code Ann. § 16-17-

446(B)-(C). Thus, federal jurisdiction hinges on whether Cahaly 

faces “sufficiently imminent” future arrest or prosecution. 

Driehaus, 134 S. Ct. at 2342.

The record contains no evidence to support this 

prerequisite to federal jurisdiction. In a declaration, Cahaly

explains his “desire to conduct telephone survey polls in the 

future in the State of South Carolina of a political nature and 

telephone calls related to political campaigns.” J.A. 73. But 

never does he allege his intention to make robocalls permitted

by the statute, and therefore subject to the disclosure 

provision, by falling within one of the Section 16-17-446(B) 

exceptions.

As a result, Cahaly lacks standing to challenge the 

disclosure provision as compelled speech. We therefore vacate

the district court’s judgment on this claim, and remand with 

instructions to dismiss it.
16

C.

Regarding Cahaly’s vagueness challenge, the district court 

ruled that he lacked standing to press it. We agree.

“One to whose conduct a statute clearly applies may not 

successfully challenge it for vagueness.” Parker v. Levy, 417 

U.S. 733, 756 (1974). Cahaly argues that the anti-robocall 

statute does not clearly apply to him because he made survey 

calls. But he does not dispute that his robocalls were also “of 

a political nature,” a category to which the statute expressly 

applies. S.C. Code Ann. § 16-17-446(A). Because the statute 

squarely covers Cahaly’s calls, we affirm the district court’s 

judgment dismissing his vagueness challenge.

III.

We turn to Cahaly’s cross-appeal of his § 1983 and state 

law claims. Because we find that probable cause supported his 

arrest for violating the anti-robocall statute, we affirm the 

district court’s grant of summary judgment to the Defendants.

A.

Cahaly alleges that LaRosa and Lloyd violated § 1983 by 

arresting and prosecuting him in retaliation for his exercise of 

free speech. He first argues that a genuine issue of material 

fact exists as to whether LaRosa had probable cause to arrest

him. We disagree.
17

A law enforcement officer who obtains an arrest warrant

loses the protection of qualified immunity “[o]nly where the 

warrant application is so lacking in indicia of probable cause 

as to render official belief in its existence unreasonable.” 

Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) 

(alteration in original) (quoting Malley v. Briggs, 475 U.S. 

335, 344-45 (1986)). “‘[P]robable cause’ to justify an arrest 

means facts and circumstances within the officer’s knowledge 

that are sufficient to warrant a prudent person, or one of 

reasonable caution, in believing, in the circumstances shown, 

that the suspect has committed . . . an offense.” Michigan v. 

DeFillippo, 443 U.S. 31, 37 (1979). Although we agree with 

Cahaly and the district court that the statute is 

unconstitutional, at the time of Cahaly’s arrest, “there was no 

controlling precedent that [the statute] was or was not 

constitutional [and a] prudent officer [is not] required to 

anticipate that a court would later hold the [statute] 

unconstitutional.” Id. at 37-38. Thus, our earlier holding has 

no bearing on whether LaRosa had probable cause when he arrested 

Cahaly.

Before making the arrest, LaRosa had statements from six 

witnesses describing the robocalls and a recording of one of the 

calls. Some of the witnesses also provided the telephone number 

of the caller, and a later investigation connected that number 
18

to Cahaly as the president of the entity that paid for it. 

Moreover, one witness reported that the call “was not a real 

survey because pressing a button was not an option.” J.A. 128.

LaRosa was also aware of the Attorney General’s opinion 

letter stating that “automated survey telephone calls for 

political purposes” fell outside the anti-robocall statute. 

J.A. 83. However, we think that a reasonable officer could have 

determined that Cahaly’s robocalls differed from those 

contemplated by the Attorney General based on the overtly 

political nature of the calls and one witness’s view that the 

survey aspect was a sham. Even if that determination was wrong 

as a matter of law, officers may have probable cause to arrest 

based on “reasonable mistakes of law.” Heien v. North Carolina, 

135 S. Ct. 530, 536-37 (2014).

Cahaly contends that the arrest warrants are facially 

invalid because they include disclosure requirements that appear 

nowhere in the statute. The affidavits used to obtain the 

warrants allege that Cahaly “failed to promptly disclose in a 

clear and conspicuous manner to the receiver of the call the 

identity of the originating party, endorsement of a candidate 

and or [sic] the nature of the call.” J.A. 237-42. But Section 

16-17-446(C) only requires some robocalls to disclose “(1) the 

identity of the seller; (2) that the purpose of the call is to 
19

sell goods or services; [and] (3) the nature of the goods or 

service.” S.C. Code Ann. § 16-17-445(B)(1)-(3).

An arrest warrant is invalid only if the officer preparing 

the affidavit included a false statement with reckless disregard 

for its truth and, after that statement is redacted, “the 

affidavit’s remaining content is insufficient to establish 

probable cause.” Franks v. Delaware, 438 U.S. 154, 156 (1978). 

Even assuming that the disclosure requirements in the affidavits

were false statements and that LaRosa acted with reckless 

disregard for their truth by including them, we still find 

probable cause based on the remaining content. The affidavits

allege that Cahaly made robocalls of a political nature, and 

nothing more is required to violate the anti-robocall statute. 

Consequently, we affirm the district court’s judgment that 

LaRosa and Lloyd are entitled to qualified immunity.3

 3 Cahaly also argues that the arrest warrant affidavits fail 

to include an essential element of the offense by not alleging 

that his robocalls included a prize promotion. Section 16-17-

446(A) defines “‘Adad’ [to] mean[] an automatically dialed 

announcing device which delivers a recorded message without 

assistance by a live operator for the purpose of making an 

unsolicited consumer telephone call as defined in Section 16-17-

445(A)(3).” The cross-reference takes readers to the definition 

for a “prize promotion” at Section 16-17-445(A)(3) while the 

definition for “unsolicited consumer telephone call” appears at 

Section 16-17-445(A)(4). According to Cahaly, this crossreference should be interpreted literally, such that 

“unsolicited consumer telephone call” means “prize promotion.”

(Continued)
20

B.

From our conclusion that LaRosa had probable cause to 

arrest Cahaly, we quickly dispense with Cahaly’s state law 

claims. Under South Carolina law, a claim for false 

imprisonment requires the plaintiff to demonstrate, in part,

that “the restraint was unlawful.” Law v. S.C. Dep’t of Corr., 

629 S.E.2d 642, 651 (S.C. 2006). “The fundamental issue in 

determining the lawfulness of an arrest is whether there was 

probable cause to make the arrest.” Id. To state a claim for 

malicious prosecution, a South Carolina plaintiff must 

establish, among other things, “lack of probable cause.” Id. at 

648. Because Cahaly has not satisfied this element of the 

claims, we affirm the district court’s judgment in favor of the 

Defendants.

 

We find that construction nonsensical and obviously 

contrary to legislative intent. The statute provides a 

definition for “unsolicited consumer telephone call” in the very 

next subsection. And as the Defendants point out, the 

legislative history shows that the cross-reference to prize 

promotion is a typographical error. As originally enacted, the 

definition of “unsolicited consumer telephone call” appeared at 

Section 16-17-445(A)(3). H.R. 3453, 107th Gen. Assemb. (S.C. 

1988). The legislature later added a definition for “prize 

promotion” and bumped the definition for “unsolicited consumer 

telephone call” to the next subsection. In so doing, the 

legislature simply neglected to update the cross-reference in 

Section 16-17-446(A).
21

IV.

For the foregoing reasons, we affirm in part and vacate in 

part the district court’s judgment, and remand the case with 

instructions to dismiss the compelled-speech claim.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED WITH INSTRUCTIONS