Voter intimidation charges have been filed against a Maryland robocall firm over calls made on Election Day urging Democratic voters in Maryland to “relax” because their “goals have been met.” The calls, made on behalf of the Republican gubernatorial candidate, are alleged to violate the federal Telephone Consumer Protection Act. The defense claims that the calls comprised political speech, which is protected by the First Amendment.
The calls were made by Julius Henson’s firm Universal Elections Inc. on behalf of former Maryland Gov. Robert Ehrlich’s campaign, although Henson believes that Ehrlich was unaware of the content of these particular calls. Henson has taken responsibility for making the calls, though he claims, perhaps incredibly, that they were meant to encourage turnout rather than suppress it. In any case, Ehrlich lost his bid against incumbent Gov. Martin O’Malley by 14 points.
While Henson’s firm is not strictly partisan, the majority of its clients are Democrats and have included then-state Del. Elijah Cummings and former Gov. Parris Glendening, both Democrats. In 2010, Henson’s clients included Democratic state Sen. Nathaniel J. McFadden and Baltimore City Council President Bernard Young, also a Democrat. It is possible that Ehrlich’s campaign contracted with Henson’s firm to take advantage of the extensive list of Democratic Maryland voters it had amassed through its work for Democratic candidates.
The civil suit filed by Maryland’s attorney general, Douglas Gansler, alleges that the calls targeted African-American voters with the intention of suppressing their vote. Henson’s home was raided on December 17 in connection with the investigation. The prosecutor’s office charges that the calls violated the Telephone Consumer Protection Act because they failed to identify the source of the call and the candidate who paid for them. Each violation carries with it a potential $500 charge—or, more than $168 million, given that more than 112,000 calls are alleged to be in violation.
In the motion to dismiss the charges, Henson’s attorney, Edward Smith Jr., claims “the message itself gave no command,” “inspired no fright” and broke no law. Furthermore, the motion claims that “the conduct of campaigns for political office is guaranteed by the First Amendment from government intrusion to the rule making of Congress and/or the FCC.”
Asked about the scandal last month, Ehrlich reportedly denied having ordered any robocalls during the elections. “I’m not a fan of [robocalls],” the Towson Patch quotes him as saying. “I don’t think they work.”
Brad Chism, a partner and senior strategist with the Democratic automated calling firm Zata|3, which did phone calls for then–House Majority Leader Steny Hoyer’s re-election campaign in Maryland, says that the relative cheapness of robocalls can create an incentive for unscrupulous individuals to use them for dirty tricks. “We take very seriously our First Amendment freedoms, and it is instances like this that can give the industry as a whole a bad name,” says Chism. “Our job is to advance democracy, not poison it.”
Noah Rothman is the online editor at C&E. Email him at firstname.lastname@example.org