National Coalition on Black Civic Participation vs. Wohl
In October 2020, the Lawyers’ Committee for Civil Rights Under Law, and co-counsel Orrick Herrington & Sutcliffe LLP filed a lawsuit and moved for a temporary restraining order in the U.S. District Court for the Southern District of New York. The two defendants sent 85,000 robocalls to Black Americans in an attempt to scare them from voting. Representing the National Coalition on Black Civic Participation and eight registered voters in New York, Pennsylvania, and Ohio, the national Lawyers’ Committee argued that defendants’ deceptive robocall campaign was a calculated effort to intimidate the Black voters in violation of the Voting Rights Act and Ku Klux Klan Act of 1871.
The robocalls contained numerous falsehoods and threats, many of which were based on systemic inequities that were particularly likely to resonate with and intimidate Black Americans. Defendants used a phony civil rights organization and a female speaker with a Black-sounding name to try to scare the listeners into not voting by mail. They falsely claimed that if you vote by mail, the police may try to track you down, debt collectors may come after you, or the CDC may try to use your information to forcibly vaccinate you. These are all threats designed to resonate with Black voters in particular. Evidence from a parallel criminal prosecution in Michigan also showed that Defendants explicitly targeted Black neighborhoods.
At a preliminary hearing, the two defendants admitted to creating and sending the robocalls and purposefully trying to inspire fear about voting by mail. On Oct. 28, 2020, the Court issued a temporary restraining order, finding plaintiffs were likely to prevail on their claims that the robocalls infringe on an individual’s right to vote, free of any intimidations or threats. In his ruling, Judge Marrero stated the two citizens were engaging in “electoral terror,” provoking the same types of fear that the Ku Klux Klan sought to produce. Judge Marrero also stated that the court needed to act swiftly and effectively to combat these modern methods of voter intimidation. The court prohibited the defendants from sending any more robocalls, text messages, or similar forms of mass communication before Election Day without prior approval and required them to send a “curative” robocall notifying all recipients of the first robocall that it was false and illegal.
The New York Office of Attorney General, on behalf of the People of the State of New York, intervened as a plaintiff in May 2021, bringing state law and federal claims against the defendants and additional claims against the company that Defendants used to transmit the robocalls, Message Communications, Inc., and its owner Robert Mahanian. The national Lawyers’ Committee and Orrick filed an amended complaint to add claims against Message Communications and Mahanian. All plaintiffs settled with Mahanian and Message Communications after they agreed to pay New York $50,000 and implement several practice reforms, including screening election-related calls.
On a tip from the national Lawyers’ Committee, in August 2021, the Federal Communications Commission issued a Notice of Apparent Liability for Forfeiture against the two defendants, proposing a $5,134,500 fine against them—its largest ever fine proposed for a robocall violation of the Telephone Consumer Protection Act.
The national Lawyers’ Committee, Orrick, and New York moved for summary judgment against the remaining defendants in July 2022. Protect Democracy Project and the Electronic Privacy Information Center filed amicus briefs in support of their motion for summary judgment on the federal claims and the New York Civil Liberties Union filed an amicus brief concerning the scope of N.Y. Civil Rights Law § 9, one of the statutes New York sued under. The United States filed a Statement of Interest arguing that Section 11(b) of the VRA prohibits threats and attempted threats of non-physical harm, such as economic harm or legal consequences, and that no showing of racial targeting is required.
Read the motion for temporary restraining order.
Read the State of New York’s complaint.
Read the amended complaint.
Read the consent decree with Message Communications.
Read the FCC’s Notice of Apparent Liability.
Read the motion for summary judgment.
Read Protect Democracy’s amicus brief.
Read the Electronic Privacy Information Center’s amicus brief.
Read New York Civil Liberties Union’s amicus brief.
Read the United States’ Statement of Interest.