                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3219
                         ___________________________

             Victor Gresham; Conquest Communications Group, LLC,

                       lllllllllllllllllllll Plaintiffs - Appellants,

                                            v.

Lori Swanson, in her official capacity as Attorney General of the State of Minnesota,

                       lllllllllllllllllllll Defendant - Appellee.
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                               Submitted: May 9, 2017
                                Filed: August 2, 2017
                                   ____________

Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

       Victor 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 court1 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.

        Minn. 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 identity.

       The 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. §


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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645.20. The court therefore concluded that Gresham was unlikely to succeed on his
claim and denied his motion for a preliminary injunction.

      A 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 Cir. 2015).

        To 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.

      With 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

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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 law.

       Van 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.

       Gresham 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)).



                                         -4-
       Gresham 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.

       We do 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 what the caller proposes to say. Accord Patriotic Veterans,
Inc. v. Zoeller, 845 F.3d 303, 305 (7th Cir. 2017) (analyzing a materially similar
Indiana law).

       Unlike the content-based restrictions in Reed, the permissions granted in the
Minnesota statute do not reflect a content preference; they are based on an assumption
of implied consent. The State does justify the statute in part based on an interest in
protecting residential privacy against disruptive calls, Van Bergen, 59 F.3d at 1554,
but this interest is not grounded in a preference for certain content. Where a
subscriber has impliedly consented to receipt of pre-recorded messages, the caller may
place a robocall about political campaigns, work schedules, or any other topic. Where
there is no such implied consent, automated calls are banned entirely, regardless of



                                         -5-
their content. Gresham does not contend that the statute forbids him to communicate
with any subscriber who has impliedly consented to receipt of his robocalls.

     The district court correctly concluded that Van Bergen is dispositive. The
judgment of the district court is affirmed.
                       ______________________________




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