U.S. District Courthouse in Helena

HELENA – A federal judge has upheld Montana’s ban on automated political “robo-calls” – although the 27-year-old ban has seldom, if ever, been enforced.

U.S. District Judge Charles Lovell of Helena said the Montana ban is an allowable restriction of free speech because it’s “narrowly drawn” and properly allows private telephone owners to control access to their private property.

The law is meant to “preserve, not diminish, the private property owner’s control over his or her property and personal choices regarding receipt of communications, both of which are integral elements of residential privacy,” Lovell wrote in a 32-page decision issued Friday.

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Attorney General Tim Fox, whose office defended the law in court, said Montanans, through their Legislature, have made it clear they don’t want political robo-calls in the state.

“This ruling upholds the will of the people and I’m proud of my team for successfully defending the law,” he said in a statement.

A political consulting firm from Michigan, Victory Processing, sued to overturn the law, saying the law illegally blocked the company from conveying political messages to voters.

Candidates, political groups and consultants sometimes use automated telephone calls to mass-distribute audio messages to voters.

Violating the ban is a misdemeanor, but former state Commissioner of Political Practices Jonathan Motl has said he’s unaware of a county attorney in Montana ever pursuing a charge of violating the robo-call law.

The Montana law allows automated political calls to people who’ve given direct or implied consent, such as those who are past donors to a campaign or political party.

Lovell said because Montana’s ban allows some calls to selected groups, it’s narrowly drawn and therefore doesn’t unreasonably restrict free speech.

Calls “unlikely to be welcome” – those made without the telephone owners’ consent – are constitutionally covered by the ban, he wrote.

Lovell also said those wishing to convey political messages to the non-consenters have other means available, such as billboards, yard signs, bulk mailing, pamphlets and Internet advertising.

“A proliferation of campaign robo-calls could lead easily to a veritable arms race of political campaign robo-calls and cause the exact privacy problem that the Montana (law) is designed to prevent: The annoyance and harassment of Montanans in their household,” he wrote.

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