HARRISBURG - Like thousands of our fellow citizens, many members of the American Civil Liberties Union of Pennsylvania are not big fans of automated calls on behalf of political candidates or political parties. We like to eat our dinner in peace. We get pretty annoyed when our answering machines are clogged with numerous calls urging us to vote for a particular candidate.
But we are great fans of the First Amendment and we know how important it is to zealously protect the rights guaranteed under that Amendment. It strikes us that both Senate Bill 820 and House Bill 295 do not pass constitutional muster as they probably violate the First Amendment. These bills look like a classic restriction on speech based on the content of that speech. It is a regulation of who can speak based on what they are saying or the nature of the speaker - the very kind of regulation of speech that our courts have frequently struck down.
Our courts are particularly skeptical of laws that seek to regulate political speech. Anybody who has taken a look at any of the recent decisions regarding lawn signs, distribution of election literature or campaign finance knows that laws that seek to bar or restrict political speech are subjected to the highest level of judicial scrutiny. Judges recognize how dangerous it is to allow the government to censor political speech. They understand that free speech is at the very core of our democracy.
Furthermore, we think that House Bill 295 could be easily evaded. The following automated phone call would be allowed under these bills:
"Hi, I'm Larry Frankel and I am running for dogcatcher. Election Day is coming up on November 2nd and the polls will be open from 7 a.m. to 8 p.m. I hope to see you next week."
Now I don't think I have violated the proposed statute because the call did not ask anyone to come out to vote or to vote for me or my party. Yet I have accomplished the goal of contacting voters and getting my name out there without my having to make individual calls or round up volunteers for a phone bank.
The Senate and House State Government Committees may be considering these bills this week. The ACLU of Pennsylvania suggests that before taking any action on this bill, the Committees take a hard look at the First Amendment issues raised by this legislation and ask the supporters of this legislation to explain why it does not violate the First Amendment.