Victor Gresham; Conquest Communications Group, LLC, Plaintiffs - Appellants,
Lori Swanson, in her official capacity as Attorney General of the State of Minnesota, Defendant-Appellee.
Submitted: May 9, 2017
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Gresham is a political consultant and a managing member of a
company called Conquest Communications Group, LLC. Gresham
and his company use automated telephonic communications,
known as "robocalls, " to engage in political
speech on behalf of clients. He believes that Minn. Stat.
§ 325E.27 unconstitutionally restricts him from
conducting these calls in Minnesota. In Gresham's view,
the statute violates the First Amendment by favoring
robocalls from certain callers based on the content of their
speech. He sought a preliminarily injunction against
enforcement of the statute, and the district
court denied his motion. Gresham and the company
appeal; we will refer to them together as
"Gresham." Because Gresham is unlikely to succeed
on his First Amendment claim, we affirm.
Stat. § 325E.27(a) provides that a caller may not make a
robocall unless "(1) the subscriber has knowingly or
voluntarily requested, consented to, permitted, or authorized
receipt of the message; or (2) the message is immediately
preceded by a live operator who obtains the subscriber's
consent before the message is delivered." Subsection (b)
then provides that subsection (a) does not apply to:
"(1) messages from school districts to students,
parents, or employees, (2) messages to subscribers with whom
the caller has a current business or personal relationship,
or (3) messages advising employees of work schedules."
§ 325E.27(b). Subsection (b) also exempts from the
requirements of subsection (a) "messages from a
nonprofit tax-exempt charitable organization sent solely for
the purpose of soliciting voluntary donations of clothing to
benefit disabled United States military veterans and
containing no request for monetary donations or other
solicitations of any kind." Id. Gresham
complains that subsection (b) favors the speech specified
therein over his speech based on its content and his
district court, relying on this court's decision in
Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir.
1995), concluded that the first three exceptions in
subsection (b) are not content-based restrictions, but are
valid time, place, and manner restrictions. The court
rejected Gresham's argument that Van Bergen had
been abrogated by subsequent Supreme Court decisions. The
court also determined that the content-based exception for
tax-exempt charitable organizations, which was added to the
statute in 2009, was severable from the rest of the statute.
See Minn. Stat. § 645.20. The court therefore
concluded that Gresham was unlikely to succeed on his claim
and denied his motion for a preliminary injunction.
district court considering injunctive relief evaluates the
movant's likelihood of success on the merits, the threat
of irreparable harm to the movant, the balance of the
equities between the parties, and whether an injunction is in
the public interest. Dataphase Sys., Inc. v. C L Sys.,
Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). We
review the denial of a preliminary injunction for abuse of
discretion. Powell v. Noble, 798 F.3d 690, 697 (8th
justify an injunction, Gresham must establish that he is
likely to succeed on his claim. On appeal, Gresham renews his
contention that § 325E.27 restricts speech based upon
the identity of the speaker and the content of the
speaker's speech. In Van Bergen, this court held
that the exceptions in subsection (b)(1) through (3) were
valid time, place, and manner restrictions, and that the
statute did not violate the First Amendment. 59 F.3d at 1556.
The legislature later added a content-based exception for
messages from charitable organizations soliciting donations
of clothing for disabled veterans, but we agree with the
district court that this new exception is severable from the
rest of § 325E.27 under the severability analysis
dictated by Minn. Stat. § 645.20. The balance of the
statute pre-existed the amendment, and we presume that the
Minnesota legislature would have retained the pre-existing
statute without the later provision. The statute remains
complete and capable of execution without the
disabled-veterans exception. Therefore, the new
exception's constitutionality does not affect whether
Gresham is entitled to an injunction.
the amendment severed, we are left with the same statute that
this court considered in Van Bergen. That decision
controls this panel unless an intervening Supreme Court
decision has superseded it. See United States v.
Anderson, 771 F.3d 1064, 1066-67 (8th Cir. 2014).
Gresham argues that Citizens United v. FEC, 558 U.S.
310 (2010), and Reed v. Town of Gilbert, 135 S.Ct.
2218 (2015), abrogate Van Bergen. In a
submission pursuant to Rule 28(j), Gresham suggests that
Matal v. Tam, 137 S.Ct. 1744 (2017), where the Court
held invalid the disparagement clause of the Lanham Act, also
helps to illustrate why Van Bergen is no longer good
Bergen reasoned that the enumerated exceptions in
subdivision (b) exempt certain groups based on their
relationship with the caller and not based on the content of
their speech. 59 F.3d at 1550. The exceptions, reasoned the
court, "all rest on a single premise: that the caller
has a relationship with the subscriber implying the
subscriber's consent to receive the caller's
communications." Id. Although the third
exception, which exempts calls from employers advising
employees of their work schedules, is content based on its
face, Van Bergen concluded that it does not actually
limit the content of employers' messages to employees:
the second exception already establishes a "broad
exception for subscribers with whom the caller had a current
business relationship, " so employers may contact
employees about matters other than scheduling. Id.
at 1550 n.5. Because the exceptions merely identify groups of
subscribers who already have consented to communications from
the caller, the court concluded that § 325E.27 was a
valid, content-neutral time, place, and manner restriction on
speech. Id. at 1551, 1556.
argues that Citizens United and Reed
undermine Van Bergen by making clear that the
government cannot regulate speech based on the identity of
the speaker. In Citizens United, the Supreme Court
reiterated the well-established principles that "the
First Amendment stands against attempts to disfavor certain
subjects or viewpoints" and that "restrictions
distinguishing among different speakers, allowing speech by
some but not others" are prohibited. 558 U.S. at 340. In
Reed, the Court explained that speaker-based
distinctions are not automatically content neutral, because
"laws favoring some speakers over others demand strict
scrutiny when the legislature's speaker preference
reflects a content preference." 135 S.Ct. at 2230
(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 658 (1994)).
complains that § 325E.27 impermissibly regulates speech
based on content by allowing only certain callers to make
robocalls without first using a live operator to obtain the
subscriber's consent. He contends that the
relationship-based rationale relied on in Van Bergen
does not survive Reed's instruction that
statutes drawing speaker-based distinctions are not
automatically content neutral. He adds that Justice
Kennedy's concurrence in Tam highlighted the
dangers of viewpoint discrimination where legislation
disfavors certain speech because of "the
government's disapproval of the speaker's choice of
message." 137 S.Ct. at 1767 (Kennedy, J., concurring).
Gresham argues that Minnesota impermissibly disfavors his
robocalls because they are perceived as annoying.
not believe that Citizens United, Reed, and
Tam supersede Van Bergen. Van
Bergen upheld § 325E.27 because the statute does
not prefer certain speech based on content, and does not
disfavor certain ideas over others. The statute as a whole
disfavors robocalls to strangers, but it allows them with
consent. If a subscriber authorizes the automated calls,
either expressly or impliedly, then the content of the
message is irrelevant. The exceptions depend on the
relationship between the caller and the subscriber, not on