League of Women Voters of New Hampshire v. Kramer

Issue

When a political consultant uses AI voice cloning to imitate President Biden in robocalls telling New Hampshire Democrats not to vote in the 2024 presidential primary, does the complaint state claims under Section 11(b) of the Voting Rights Act and the Telephone Consumer Protection Act against the calling vendors who transmitted the message but did not write it, and do recipients who recognized the voice as fake and voted anyway still have standing to sue?

Rule

Section 11(b) of the Voting Rights Act, 52 U.S.C. 10307(b), forbids any person to intimidate, threaten or coerce, or to attempt to intimidate, threaten or coerce, any person for voting or attempting to vote. The Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(B), forbids initiating a call to a residential line using an artificial or prerecorded voice without the prior express consent of the called party, and 47 C.F.R. 64.1200(b)(3) requires an automated, interactive opt-out mechanism in prerecorded messages delivered under an exemption. New Hampshire adds RSA 664:14-a on disclosures in prerecorded political messages and RSA 664:14-b on misrepresenting the origin of a campaign call, each giving a claim to any person injured by a violation. On a motion to dismiss the District of New Hampshire took the well-pleaded facts as true and asked whether they stated a plausible claim under Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. Organizational standing was measured against Havens Realty Corp. v. Coleman as narrowed by Food and Drug Administration v. Alliance for Hippocratic Medicine, and the meaning of the word initiate in the Telephone Consumer Protection Act came from the FCC's DISH Network declaratory ruling and its 2015 declaratory ruling, which extend liability to a party so involved in placing a call as to be deemed to have initiated it.

Application

The plaintiffs, two League of Women Voters entities and three New Hampshire voters, pleaded that Steve Kramer asked an associate in November 2023 to build an AI-generated recording of President Biden's voice, supplied the script on January 19, 2024, and had roughly 10,000 calls carrying that recording placed to likely Democratic voters on the evening of January 21, two days before the primary. The message told recipients to save their vote for November and warned that voting in the primary would only enable the Republicans. Kramer also directed that the caller ID be spoofed to the personal telephone number of Kathy Sullivan, a prominent New Hampshire Democrat, and, at Voice Broadcasting's suggestion, added a closing line telling recipients to call that same spoofed number to be removed from future calls. Life Corporation and Voice Broadcasting moved to dismiss on standing and on the merits of every count. On standing, they argued the three voters conceded no injury because they realized the call was fake and voted anyway, and that the League entities had merely spent money opposing conduct they disliked, which Alliance for Hippocratic Medicine forbids. The District of New Hampshire rejected both arguments. A completed attempt to intimidate is enough under Section 11(b), so that the defendants' attempt to suppress these plaintiffs' votes being clumsy and unsuccessful did not divest them of standing, and a technical Telephone Consumer Protection Act violation is itself a concrete injury. The League's standing the court called a close and difficult call, but distinguished Alliance because the League was not challenging a government policy: the deepfake robocalls interfered directly with the League's own core functions of combating voter suppression and counseling citizens on voting, and the League diverted staff and money to correct the false message. On the Voting Rights Act count the defendants argued the call was at most misinformation and not intimidating on its face. The court disagreed, reading the threatened dilution or nullification of a November vote as the kind of nonviolent threat of legal or economic consequence that the Wohl line of cases treats as intimidation, and it inferred the vendors' knowledge from the allegation that Voice Broadcasting proposed the opt-out sentence and therefore knew the message's content. On the Telephone Consumer Protection Act count the court assumed without deciding that neither Life Corporation nor Voice Broadcasting physically initiated the calls, then held that the FCC's declaratory rulings extend liability to a party so involved in placing a call, or that knowingly allows its platform to be used for unlawful purposes, that it is deemed to have initiated the call, and that the Amended Complaint pleaded enough knowledge and involvement to survive. The court did not decide whether the robocalls were exempt political calls, because even an exempt political call must carry a compliant opt-out mechanism, and directing recipients to call a private citizen's spoofed personal number plainly failed 47 C.F.R. 64.1200(b)(3). On the state counts the court held that the individual plaintiffs, unlike the candidate in O'Brien v. New Hampshire Democratic Party, actually received the call at home on a landline and could not tell who was responsible, which is an injury, and it expressly left open whether the League entities have standing under RSA 664:14-a and RSA 664:14-b, since one plaintiff with standing per claim is enough.

Conclusion

The District of New Hampshire denied the motion to dismiss filed by Life Corporation and Voice Broadcasting Corporation in full, leaving all four counts, the Voting Rights Act claim, the Telephone Consumer Protection Act claim, and the two New Hampshire election law claims, to proceed against those two defendants. The order decides only what the Amended Complaint adequately alleges and resolves nothing about what the vendors actually knew or did; the court said expressly that the initiation question will be settled at trial or on summary judgment. In a companion order signed the next day the same judge denied the plaintiffs' amended motion for a nationwide preliminary injunction, adopting the magistrate judge's report except as to institutional standing, on the grounds that no plaintiff had shown irreparable harm and that the injunction sought was not sufficiently specific.

In addition to employing an AI-generated voice designed to deceive recipients into believing that President Biden had recorded the message, defendants also "spoofed" the caller ID to falsely show that the call originated from a phone number associated with Kathleen Sullivan, a prominent attorney and well-known former state Democratic Party leader.

Judge Steven J. McAuliffe, opening description of the conduct alleged

Regardless of its actual impact upon the plaintiffs, the Amended Complaint plausibly alleges that the Deepfake Robocall represents an attempt to intimidate or coerce the recipients into not voting in the primary election.

Judge McAuliffe, holding on the Voting Rights Act count

At this juncture, however, the Amended Complaint adequately and plausibly alleges sufficient knowledge and involvement by Voice Broadcasting and Life Corp. to survive the motion to dismiss.

Judge McAuliffe, on vendor liability under the Telephone Consumer Protection Act

Why it matters. This is the decision that let the first major American deepfake voter-suppression case proceed past the pleadings, and it did so against the telecommunications intermediaries rather than only the consultant who commissioned the clone. Two points travel beyond the facts: recipients who saw through the fake still have standing because the statute reaches attempts, and a political robocall does not escape the Telephone Consumer Protection Act merely by being political, because the opt-out requirement still applies.

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This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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