                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-1651


ROBERT C. CAHALY,

                Plaintiff – Appellee,

           v.

PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,

                Defendants – Appellants.



                             No. 14-1680


ROBERT C. CAHALY,

                Plaintiff – Appellant,

           v.

PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,

                Defendants – Appellees.



Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:13-cv-00775-JMC)


Argued:   March 25, 2015                   Decided:   August 6, 2015
Before WYNN, DIAZ, and THACKER, Circuit Judges.


Affirmed   in  part,   vacated   in  part,   and  remanded with
instructions by published opinion.        Judge Diaz wrote the
opinion, in which Judge Wynn and Judge Thacker joined.


ARGUED: Kenneth Paul Woodington, DAVIDSON & LINDEMANN, P.A.,
Columbia,   South   Carolina,   for  Appellants/Cross-Appellees.
Samuel Darryl Harms, III, HARMS LAW FIRM, PA, Greenville, South
Carolina, for Appellee/Cross-Appellant.    ON BRIEF: Robert D.
Cook, Solicitor General, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina; William H. Davidson, II, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellants/Cross-
Appellees.




                                2
DIAZ, Circuit Judge:

     Robert    C.     Cahaly,     a    self-described          Republican       political

consultant,     was     arrested       for       alleged       violations       of   South

Carolina’s    anti-robocall           statute.          After        the   charges    were

dismissed, Cahaly filed suit, challenging the statute on three

First Amendment grounds: as an unlawful regulation of speech, as

impermissibly        compelling       speech,       and     as       unconstitutionally

vague.      Cahaly    also   sought      damages        from     the    law   enforcement

officials    involved     in    his     arrest      (and       the     agency   employing

them), advancing claims under 42 U.S.C. § 1983 and state law for

false imprisonment and malicious prosecution.

     Under the content-neutrality framework set forth in Reed v.

Town of Gilbert, 135 S. Ct. 2218 (2015), we find that the anti-

robocall statute is a content-based regulation that does not

survive   strict      scrutiny. 1        We      also     hold    that     Cahaly    lacks

standing to bring compelled-speech and vagueness challenges, and

that his other claims fail due to the presence of probable cause

to arrest him.         As a result, we affirm the district court’s

judgment except for the compelled-speech claim, which we vacate

and remand with instructions to dismiss it.




     1 We received supplemental briefs from the parties on the
import of Reed to the issues on appeal.



                                             3
                                                  I.

                                                  A.

      In    1991,    the     South      Carolina             General       Assembly     enacted    a

statute      regulating       automated            telephone           calls      that       deliver

recorded      messages,       or       “robocalls.” 2                 This     statute        places

different restrictions on robocalls depending on whether they

are (1) unsolicited and (2) made for consumer, political, or

other      purposes.         By    definition,                it     prohibits        only     those

robocalls that are “for the purpose of making an unsolicited

consumer      telephone       call”          or        are     “of     a     political        nature

including,     but     not    limited         to,       calls        relating     to     political

campaigns.”     S.C. Code Ann. § 16-17-446(A).

        All qualifying robocalls are banned with three exceptions,

based on the express or implied consent of the called party:

        (1) in response to an express request of the person
        called; (2) when primarily connected with an existing
        debt or contract, payment or performance of which has
        not been completed at the time of the call; (3) in
        response to a person with whom the telephone solicitor
        has an existing business relationship or has had a
        previous business relationship.

Id.   § 16-17-446(B).             If    an    exception            applies,       the    permitted

robocall     must    “disconnect         immediately               when     the   called      party

hangs up”; must be made between 8:00 AM and 7:00 PM; and “may

      2The statute refers to robocalls as “Adad calls,” which
stands for “automatically dialed announcing device.” S.C. Code
Ann. § 16-17-446 (2014).



                                                  4
not   ring    at   hospitals,        police     stations,    fire      departments,

nursing homes, hotels, or vacation rental units.”                      Id. § 16-17-

446(C)(2)-(4).         Some    permitted      robocalls     must    also    disclose

certain information to the called party: “(1) the identity of

the seller; (2) that the purpose of the call is to sell goods or

services; [and] (3) the nature of the goods or services.”                          Id.

§§ 16-17-445(B)(1)-(3), -446(C)(1).

      Other     statutory       provisions       contain      rules        for     live

solicitors      making        unsolicited       consumer     telephone           calls.

Solicitors must place their calls from 8:00 AM and 9:00 PM, make

certain    disclosures,       and    maintain    a   do-not-call       list.       Id.

§§ 16-17-445(B)-(E).

      A    violation     of    the    statute    constitutes       a    misdemeanor

offense.      Id. § 16-17-446(D) (cross-referencing § 16-17-445(F)).

A first or second conviction carries a maximum punishment of a

$200 fine or 30 days in prison while a third or later conviction

carries a fine of $200 to $500 or the same maximum 30 days’

imprisonment.      Id.

                                        B.

      On September 23, 2010, Cahaly allegedly placed robocalls in

six South Carolina house legislative districts.                     With the name

changed to reflect the Democratic candidate in each district,

the calls’ prerecorded message said:

      Please hold for a one-question survey.

                                         5
       As you may have heard, Speaker of                  the   House   Nancy
       Pelosi is coming to South Carolina.

       Do you think incumbent Democrat Anne Peterson Hutto
       should invite her fellow Democrat Nancy Pelosi to come
       campaign for her?

       Press 1 if you think incumbent Democrat Anne Peterson
       Hutto should invite her fellow Democrat Nancy Pelosi
       to come and campaign for her.

       Press 2 if you think incumbent Democrat Anne Peterson
       Hutto should not invite her fellow Democrat Nancy
       Pelosi to come and campaign for her.

J.A. 219-20.

       About one week before the calls were placed, an attorney

with   the   South    Carolina     Office   of    the   Attorney    General     told

Cahaly that the anti-robocall statute did not cover “automated

telephone survey polls of a political nature.”                     J.A. 74.      The

attorney encouraged him to ask a member of the state House of

Representatives to seek a written opinion to that effect.                         A

representative       made   that    request,      and     the   Attorney   General

issued   a   letter,    the   day    before      Cahaly    made   the   robocalls,

stating:

       In the opinion of this office, organizations, such as
       Survey USA, may routinely conduct automated survey
       telephone calls for political purposes in this State
       that require the recipient’s responses via a phone
       key.   The purpose of the ADAD law is to prohibit the
       unwarranted invasion by automated dialing devices in
       order to promote advocacy of a “product” including a
       particular candidate.  Thus, as long as these polling
       calls, even if they are of a political nature, do not
       advocate a particular political candidate but simply


                                        6
      obtain a “snapshot” opinion of a voter, they may be
      made.

J.A. 83.

      The day after Cahaly placed the robocalls, an incumbent

seeking reelection in one of the targeted districts wrote to the

South Carolina Law Enforcement Division (“SLED”) reporting that

her constituents had received telephone calls that violated the

anti-robocall statute.              Over the next three weeks, Democratic

candidates in the other five districts also reported to SLED

that their constituents had received the same calls using their

names.

      On November 1, 2010, a state magistrate judge issued six

warrants--one for each targeted district--for Cahaly’s arrest.

The election was held November 2.                    That same day, SLED issued a

press release announcing the warrants.                        On November 3, Cahaly

turned   himself   in,       was    booked,      and    was    released    on   his   own

recognizance.          The   warrants        were      dismissed    eighteen      months

later.

                                           C.

      Cahaly filed a complaint in state court against SLED; Paul

C. LaRosa, III, a special agent with SLED who completed the

arrest warrant applications; and Reginald I. Lloyd, the director

of   SLED   at   the    time       of   Cahaly’s       arrest    (collectively,       the

“Defendants”).         Cahaly       sought       a   declaration    that    the   anti-


                                             7
robocall     statute        was     unconstitutional            and     an     injunction

prohibiting the Defendants from enforcing it.                         He also alleged a

damages claim under 42 U.S.C. § 1983 and state law claims for

false imprisonment and malicious prosecution.

      The Defendants removed the case to federal court.                                 Cahaly

moved for partial summary judgment on his claim for declaratory

and     injunctive    relief.            The       Defendants    moved       for    summary

judgment on all claims.

      The district court granted Cahaly’s motion, declared the

anti-robocall statute unconstitutional, and issued a permanent

injunction barring enforcement of the statute.                               The district

court concluded that the statute was a content-based restriction

on speech and applied strict scrutiny.                     Under that rubric, the

court     found      the     statute        unconstitutional            due        to     “its

underinclusiveness          and    its     singling      out     of     commercial         and

political speech” when the asserted government interest was to

eliminate nearly all robocalls to protect residential privacy.

Cahaly v. LaRosa, 25 F. Supp. 3d 817, 827 (D.S.C. 2014).                                  The

court    also    determined       that    the      statutory     provision         requiring

robocalls       to   disclose       certain         identifying       information         was

unconstitutional       as    compelled         speech,    but    that    Cahaly         lacked

standing to bring his vagueness challenge.

      The    district       court        awarded       summary    judgment          to     the

Defendants on Cahaly’s other claims.                   The court held that LaRosa

                                               8
and   Lloyd     were      entitled       to   qualified       immunity     on     the   § 1983

claim because the right at issue was not clearly established.

The court also held that the existence of probable cause to

arrest   Cahaly        defeated       his     false        imprisonment     and    malicious

prosecution claims.

       The     Defendants          appeal       the     district       court’s      judgment

granting       declaratory         and    injunctive         relief.       Cahaly        cross-

appeals the district court’s judgment on his damages claims.                                   We

review    de    novo       the   district        court’s      order      granting       summary

judgment and its ruling that a party lacks standing.                                Brown v.

Town of Cary, 706 F.3d 294, 300 (4th Cir. 2013).



                                              II.

       We begin with Cahaly’s First Amendment claim.                               First, we

consider whether the anti-robocall statute is a content-neutral

restriction      on       speech    subject      to     intermediate       scrutiny       or    a

content-based restriction that must withstand strict scrutiny.

We    then    turn     to    whether      the        statute’s     mandatory      disclosure

provision       constitutes         compelled          speech.        Lastly,      we     reach

Cahaly’s vagueness challenge.                   As explained below, we hold that

the    statute       is     content      based       and    does   not    survive        strict

scrutiny, and that Cahaly lacks standing to bring his compelled-

speech and vagueness challenges.



                                                 9
                                            A.

      The Supreme Court recently clarified the content-neutrality

inquiry in the First Amendment context.                         In Reed, the Court

explained that “the crucial first step in the content-neutrality

analysis” is to “determin[e] whether the law is content neutral

on its face.”        135 S. Ct. at 2228.                  At the second step, a

facially     content-neutral          law    will      still    be     categorized     as

content based if it “cannot be ‘“justified without reference to

the content of the regulated speech,”’ or . . . adopted by the

government      ‘because    of     disagreement          with    the    message      [the

speech] conveys.’”         Id. at 2227 (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989)).

      This formulation conflicts with, and therefore abrogates,

our previous descriptions of content neutrality in cases such as

Brown v. Town of Cary.           See 706 F.3d at 303 (“[I]f a regulation

is   ‘justified    without    reference           to   the   content     of   regulated

speech,’    [citation      omitted]         ‘we   have   not    hesitated      to    deem

[that]     regulation      content          neutral      even     if     it    facially

differentiates     between       types      of    speech.’”)     (quoting     Wag    More

Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 366 (4th Cir.

2012) (last alteration in original)).                     Our earlier cases held

that,    when   conducting       the    content-neutrality           inquiry,     “[t]he

government’s      purpose        is      the       controlling         consideration.”

Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th

                                            10
Cir. 2013) (quoting Ward, 491 U.S. at 791).                         But Reed has made

clear that, at the first step, the government’s justification or

purpose in enacting the law is irrelevant.                        135 S. Ct. at 2228-

29.

      Applying Reed’s first step, we find that South Carolina’s

anti-robocall statute is content based because it makes content

distinctions on its face.                  Reed instructs that “[g]overnment

regulation      of    speech   is    content      based      if    a   law     applies    to

particular speech because of the topic discussed or the idea or

message    expressed.”         135    S.    Ct.   at     2227.         Here,    the    anti-

robocall statute applies to calls with a consumer or political

message but does not reach calls made for any other purpose.

Because of these facial content distinctions, we do not reach

the second step to consider the government’s regulatory purpose.

See id. at 2228 (“[A]n innocuous justification cannot transform

a facially content-based law into one that is content neutral.”)

      As a content-based regulation of speech, the anti-robocall

statute is subject to strict scrutiny.                   Id. at 2231.          Under this

standard,       the   government       must      prove      “that      the     restriction

furthers    a    compelling     interest         and   is    narrowly        tailored     to

achieve that interest.”              Id. (quoting Ariz. Free Enter. Club’s

Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)).                              “If

a less restrictive alternative would serve the [g]overnment’s

purpose, the legislature must use that alternative.”                                  United

                                            11
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

Moreover,        the      restriction           cannot        be         overinclusive          by

“unnecessarily            circumscrib[ing]               protected               expression,”

Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002)

(quoting     Brown       v.   Hartlage,        456     U.S.        45,    54     (1982)),       or

underinclusive          by    “leav[ing]         appreciable             damage        to     [the

government’s] interest unprohibited,” Reed, 135 S. Ct. at 2232

(quoting White, 536 U.S. at 780).

      The     asserted        government        interest       here        is     to    protect

residential privacy and tranquility from unwanted and intrusive

robocalls.         Assuming that interest is compelling, we hold that

the   government        has     failed    to     prove     that          the    anti-robocall

statute     is     narrowly     tailored        to    serve    it.             Plausible      less

restrictive           alternatives       include         time-of-day             limitations,

mandatory disclosure of the caller’s identity, or do-not-call

lists.      See Maryland v. Universal Elections, Inc., 729 F.3d 370,

376 (4th Cir. 2013) (evaluating the federal Telephone Consumer

Protection Act’s identity disclosure requirement); Nat’l Fed’n

of the Blind v. F.T.C., 420 F.3d 331, 333-34 (4th Cir. 2005)

(examining a federal regulation that “requires callers to make

certain     disclosures,         refrain       from    making        late-night,            early-

morning, and ‘abandoned calls’ (calls followed by silence), and

comply      with      a . . .     ‘do-not-call           list’”);          Van     Bergen       v.

Minnesota,       59    F.3d    1541,     1551    (8th     Cir.       1995)       (considering

                                            12
Minnesota’s ban on robocalls from 9 PM to 9 AM).                   The government

has offered no evidence showing that these alternatives would

not be effective in achieving its interest.

       In addition, the record contains evidence that the anti-

robocall statute is overinclusive.                   The Defendants themselves

cite to a report from a U.S. House of Representatives committee

that    concluded,       “Complaint     statistics        show     that      unwanted

commercial calls are a far bigger problem than unsolicited calls

from political or charitable organizations.”                 H.R. Rep. 102-317,

at 16 (1991).      Yet the statute also targets political calls.

       At   the         same   time,         the     statute       suffers         from

underinclusiveness because it restricts two types of robocalls--

political and consumer--but permits “unlimited proliferation” of

all other types.         Reed, 135 S. Ct. at 2231; see id. (“The Town

cannot claim that placing strict limits on temporary directional

signs is necessary to beautify the Town while at the same time

allowing unlimited numbers of other types of signs that create

the same problem.”).

       Because    the    statute    does     not   pass   muster      under    strict

scrutiny, we affirm the district court’s judgment declaring it

unconstitutional.

                                        B.

       Turning     to     Cahaly’s      compelled-speech         challenge,         if

robocalls   are    permitted       because    they    fall   within    one    of   the

                                        13
three       exceptions         listed      in     Section        16-17-446(B),       then      the

statute requires those calls to disclose “(1) the identity of

the seller; (2) that the purpose of the call is to sell goods or

services; [and] (3) the nature of the goods or services.”                                     S.C.

Code        Ann.         § 16-17-446(C)(1)             (cross-referencing              § 16-17-

445(B)(1)-(3)).            The district court ruled that these mandatory

disclosures         unconstitutionally            compel       speech.         The   Defendants

contend this ruling is in error due to the absence of a case or

controversy, a jurisdictional prerequisite under Article III of

the U.S. Constitution.               We agree.

       One    requirement            of    Article       III      standing      is   that     the

plaintiff suffer an “injury in fact.”                            Susan B. Anthony List v.

Driehaus,      134        S.   Ct.    2334,       2341      (2014)       (quoting     Lujan    v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992)).                               While “actual

arrest or prosecution” for violating a statute establishes an

injury in fact, Steffel v. Thompson, 415 U.S. 452, 459 (1974),

so   too     may     a     “credible       threat      of      prosecution       thereunder.”

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979).

       As    the     Defendants           note,    Cahaly         was    not    charged      with

violating      Section         16-17-446(C)(1),           the      disclosure        provision,

despite       the    affidavits           submitted         to     the    magistrate        judge

alleging that Cahaly’s robocalls “failed to promptly disclose in

a clear and conspicuous manner to the receiver of the call the

                                                  14
identity of the originating party, endorsement of a candidate

and or [sic] the nature of the call.”                     J.A. 237-42.          Rather, he

was   charged       solely     with    violating      Sections         16-17-446(A)-(B),

which       ban    political       robocalls      outright.        In        addition,    the

affidavits do not allege any facts about Cahaly’s relationship

to    the    called    parties,       but   the     called       parties’       express    or

implied consent to being called is a necessary condition for the

disclosure        provision    to     apply.       See    S.C.    Code       Ann.   § 16-17-

446(B)-(C).         Thus, federal jurisdiction hinges on whether Cahaly

faces       “sufficiently      imminent”         future   arrest        or     prosecution.

Driehaus, 134 S. Ct. at 2342.

       The        record     contains       no     evidence        to        support     this

prerequisite to federal jurisdiction.                     In a declaration, Cahaly

explains his “desire to conduct telephone survey polls in the

future in the State of South Carolina of a political nature and

telephone calls related to political campaigns.”                             J.A. 73.     But

never does he allege his intention to make robocalls permitted

by    the     statute,       and     therefore      subject       to     the     disclosure

provision, by falling within one of the Section 16-17-446(B)

exceptions.

       As     a    result,     Cahaly    lacks      standing       to     challenge       the

disclosure provision as compelled speech.                         We therefore vacate

the district court’s judgment on this claim, and remand with

instructions to dismiss it.

                                            15
                                    C.

       Regarding Cahaly’s vagueness challenge, the district court

ruled that he lacked standing to press it.          We agree.

       “One to whose conduct a statute clearly applies may not

successfully challenge it for vagueness.”            Parker v. Levy, 417

U.S.   733,   756    (1974).   Cahaly    argues   that   the   anti-robocall

statute does not clearly apply to him because he made survey

calls.     But he does not dispute that his robocalls were also “of

a political nature,” a category to which the statute expressly

applies.      S.C. Code Ann. § 16-17-446(A).         Because the statute

squarely covers Cahaly’s calls, we affirm the district court’s

judgment dismissing his vagueness challenge.



                                   III.

       We turn to Cahaly’s cross-appeal of his § 1983 and state

law claims.     Because we find that probable cause supported his

arrest for violating the anti-robocall statute, we affirm the

district court’s grant of summary judgment to the Defendants.

                                    A.

       Cahaly alleges that LaRosa and Lloyd violated § 1983 by

arresting and prosecuting him in retaliation for his exercise of

free speech.        He first argues that a genuine issue of material

fact exists as to whether LaRosa had probable cause to arrest

him.   We disagree.

                                    16
       A law enforcement officer who obtains an arrest warrant

loses the protection of qualified immunity “[o]nly where the

warrant application is so lacking in indicia of probable cause

as to render official belief in its existence unreasonable.”

Torchinsky       v.    Siwinski,        942    F.2d      257,    261     (4th       Cir.        1991)

(alteration in original) (quoting Malley v. Briggs, 475 U.S.

335, 344-45 (1986)).               “‘[P]robable cause’ to justify an arrest

means    facts       and    circumstances        within     the     officer’s         knowledge

that    are    sufficient        to    warrant      a    prudent       person,       or    one    of

reasonable caution, in believing, in the circumstances shown,

that the suspect has committed . . . an offense.”                                   Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979).                           Although we agree with

Cahaly        and     the       district       court        that        the      statute          is

unconstitutional, at the time of Cahaly’s arrest, “there was no

controlling         precedent         that    [the       statute]       was     or        was    not

constitutional         [and      a]   prudent       officer      [is    not]     required          to

anticipate          that    a    court       would       later     hold       the     [statute]

unconstitutional.”              Id. at 37-38.           Thus, our earlier holding has

no bearing on whether LaRosa had probable cause when he arrested

Cahaly.

       Before making the arrest, LaRosa had statements from six

witnesses describing the robocalls and a recording of one of the

calls.    Some of the witnesses also provided the telephone number

of the caller, and a later investigation connected that number

                                               17
to Cahaly as the president of the entity that paid for it.

Moreover, one witness reported that the call “was not a real

survey because pressing a button was not an option.”                        J.A. 128.

     LaRosa was also aware of the Attorney General’s opinion

letter     stating      that    “automated        survey    telephone       calls     for

political       purposes”      fell   outside       the    anti-robocall         statute.

J.A. 83.     However, we think that a reasonable officer could have

determined       that     Cahaly’s      robocalls          differed        from     those

contemplated       by   the     Attorney     General       based     on    the    overtly

political nature of the calls and one witness’s view that the

survey aspect was a sham.             Even if that determination was wrong

as a matter of law, officers may have probable cause to arrest

based on “reasonable mistakes of law.”                    Heien v. North Carolina,

135 S. Ct. 530, 536-37 (2014).

     Cahaly       contends     that    the       arrest    warrants       are    facially

invalid because they include disclosure requirements that appear

nowhere    in    the    statute.      The    affidavits       used    to    obtain    the

warrants allege that Cahaly “failed to promptly disclose in a

clear and conspicuous manner to the receiver of the call the

identity of the originating party, endorsement of a candidate

and or [sic] the nature of the call.”                 J.A. 237-42.         But Section

16-17-446(C) only requires some robocalls to disclose “(1) the

identity of the seller; (2) that the purpose of the call is to



                                            18
sell goods or services; [and] (3) the nature of the goods or

service.”          S.C. Code Ann. § 16-17-445(B)(1)-(3).

       An arrest warrant is invalid only if the officer preparing

the affidavit included a false statement with reckless disregard

for    its    truth     and,     after   that      statement    is    redacted,     “the

affidavit’s          remaining    content       is    insufficient     to    establish

probable cause.”           Franks v. Delaware, 438 U.S. 154, 156 (1978).

Even assuming that the disclosure requirements in the affidavits

were       false    statements     and   that        LaRosa   acted   with    reckless

disregard      for     their     truth   by    including      them,   we    still   find

probable cause based on the remaining content.                        The affidavits

allege that Cahaly made robocalls of a political nature, and

nothing more is required to violate the anti-robocall statute.

Consequently,         we   affirm    the      district     court’s    judgment      that

LaRosa and Lloyd are entitled to qualified immunity. 3




       3
       Cahaly also argues that the arrest warrant affidavits fail
to include an essential element of the offense by not alleging
that his robocalls included a prize promotion.      Section 16-17-
446(A) defines “‘Adad’ [to] mean[] an automatically dialed
announcing device which delivers a recorded message without
assistance by a live operator for the purpose of making an
unsolicited consumer telephone call as defined in Section 16-17-
445(A)(3).” The cross-reference takes readers to the definition
for a “prize promotion” at Section 16-17-445(A)(3) while the
definition for “unsolicited consumer telephone call” appears at
Section 16-17-445(A)(4).     According to Cahaly, this cross-
reference   should    be   interpreted   literally,    such   that
“unsolicited consumer telephone call” means “prize promotion.”

(Continued)
                                              19
                                              B.

       From   our   conclusion       that      LaRosa      had   probable    cause      to

arrest    Cahaly,    we    quickly       dispense     with       Cahaly’s   state      law

claims.        Under      South     Carolina        law,     a    claim     for    false

imprisonment    requires      the       plaintiff    to     demonstrate,     in    part,

that “the restraint was unlawful.”                 Law v. S.C. Dep’t of Corr.,

629 S.E.2d 642, 651 (S.C. 2006).                    “The fundamental issue in

determining the lawfulness of an arrest is whether there was

probable cause to make the arrest.”                  Id.     To state a claim for

malicious     prosecution,          a     South      Carolina       plaintiff          must

establish, among other things, “lack of probable cause.”                          Id. at

648.      Because   Cahaly    has       not    satisfied     this    element      of    the

claims, we affirm the district court’s judgment in favor of the

Defendants.




     We   find  that   construction  nonsensical  and  obviously
contrary to legislative intent.        The statute provides a
definition for “unsolicited consumer telephone call” in the very
next subsection.      And as the Defendants point out, the
legislative history shows that the cross-reference to prize
promotion is a typographical error. As originally enacted, the
definition of “unsolicited consumer telephone call” appeared at
Section 16-17-445(A)(3).    H.R. 3453, 107th Gen. Assemb. (S.C.
1988).   The legislature later added a definition for “prize
promotion” and bumped the definition for “unsolicited consumer
telephone call” to the next subsection.        In so doing, the
legislature simply neglected to update the cross-reference in
Section 16-17-446(A).


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                               IV.

     For the foregoing reasons, we affirm in part and vacate in

part the district court’s judgment, and remand the case with

instructions to dismiss the compelled-speech claim.



                               AFFIRMED IN PART, VACATED IN PART,
                                   AND REMANDED WITH INSTRUCTIONS




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