REPUBLISHED: Law360 “Expert Analysis” TCPA Piece On Why Our Right to Free Speech is at Stake in the Battle over the Constitutionality of the TCPA

Editor’s Note: This piece–written by the Czarina and I– ran on May 13, 2019 as “Expert Analysis” in Law360 entitled “What’s At Stake In Battle Over TCPA Constitutionality.” It is re-published here with permission from that publication.

This month marks the 76th anniversary of the U.S. Supreme Court’s landmark free speech decision in Martin v. City of Struthers.[1] In that case, our highest court held that an ordinance designed to protect privacy by barring unsolicited door-knockers from distributing pamphlets to private residences was unconstitutional — constituting an impermissible prior restraint on speech that threatened free society itself.

The government — it was held — cannot ban the delivery of constitutionally protected messages in the name of residential privacy. Yes, some folks might be annoyed by having to come to the door on a Sunday morning to greet a neighbor sharing an unwelcome message of faith, or an unsympathetic political position, but that nuisance must be borne — hopefully as a badge of honor — by all those who wish to live in freedom.

As the great Justice Hugo Black wrote at the time, the “stringent prohibition” against distributing unsolicited pamphlets and circulars to one’s neighbors “serve[d] no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”

Flash forward to today. Courts have largely lost their stomach for protecting free speech, at least as compared to protecting the freedom not to be bothered — even if ever-so-slightly — by unwanted messages. Just last week in Melito v. Experian Mktg. Solutions Inc.,[2] the U.S. Court of Appeals for the Second Circuit held that the receipt of a single unwanted text message conferred Constitutional Article III standing to allow a plaintiff to pursue a nationwide class action resulting in an eight figure settlement under the Telephone Consumer Protection Act.

While the decision swiftly determined that receipt of the message was an “invasion of privacy” of the sort Congress intended to prevent in enacting the TCPA — never mind that text messages did not exist at the time — there was no serious examination of how an exercise of free speech can cause an actionable “harm” to an unwilling listener in the absence of any resulting actual injury. No such examination is deemed necessary these days in light of the robocall epidemic — the freedom of speech may not stop at our doorstep, but it certainly stops at our personal devices.

Indeed, as the battle against robocalls escalates First Amendment protections are increasingly at risk of becoming collateral damage. Even now — driven by robocall-fueled litigation — a momentous battle over the future of free speech is being waged in courthouses across the country as judges struggle to assess whether the broadest restriction on constitutionally protected speech in our nation’s history — the TCPA — passes First Amendment scrutiny. The outcome of this determination — and the analytic approach adopted by courts in reaching that outcome — is likely to permanently shift the contours of First Amendment jurisprudence, one way or the other.

To understand the stakes, it is important to understand the First Amendment and the judicially created safeguards that exist to keep Congress from running roughshod over our constitutional rights. Let’s start at the beginning — the First Amendment states:

Congress shall make no law … abridging the freedom of speech.

Despite that blanket assurance, Congress has often acted to abridge speech and the courts have come to an uneasy truce with the practice, allowing such enactments to withstand constitutional scrutiny where the speech regulated is “unprotected” or where the speech, although protected, is regulated in a manner that is content-neutral — favoring no particular message — and furthers an important governmental interest.

Where an enactment seeks to regulate only certain unfavored or unprotected speech, however, the statute is deemed “content-specific” and — at least historically — is subjected to an extraordinarily high level of constitutional scrutiny known as “strict scrutiny.” Under “strict scrutiny” a content- specific restriction on speech is “presumptively invalid” and can only survive constitutional examination if the government can demonstrate that the statute is narrowly tailored to a governmental interest.

The vast majority of speech is constitutionally “protected” speech and it is presumptively so. Among the rare examples of unprotected speech include falsely screaming “fire” in a crowded movie theater or lying about the contents of the processed snack cake you’re selling. So regulations prohibiting such “unprotected” speech are lawful — but only if the regulation is very narrow.

Banning all speech in a movie theater, for instance, to prevent someone from yelling “fire” would not be constitutional. Banning all advertising to prevent false advertising would also run afoul of the First Amendment. The reason is rather obvious — such enactments are overly broad and impose an undue burden on protected speech. The rule in such cases is that these content-specific regulations must be narrowly tailored to a compelling governmental interest to pass constitutional muster.

The same strict scrutiny paradigm is supposed to apply to statutes that favor certain categories of protected speech over other categories of protected speech. This is so because “[a]s a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear.”[3] Thus where a statute carves out certain speech from regulation on the basis of the content of the messages that statute too is subject to strict scrutiny review, even if the statute is otherwise content-neutral on its face.

With all of this in mind we return to the TCPA. Again — and without question — the TCPA, as it is currently being applied, is the single broadest restriction on constitutionally protected speech in the history of our country. It is also one of the primary drivers of litigation in federal court — with huge numbers of suits filed monthly seeking to recover the $500 per call minimum penalty the statute makes available.

While the TCPA is commonly said to regulate “robocalls,” that is not quite right. The statute actually prohibits calls made using a broad-swatch of efficient dialing technologies — although no one really knows for sure which technologies the statute covers — and applies to perfectly legitimate phone calls manned by live agents — not just prerecorded robocall spam or scam messages. So while some of the calls regulated by the TCPA are “unprotected” scam calls the vast majority of calls regulated by the statute are legitimate calls that are perfectly protected by the First Amendment.

Despite the fact that the TCPA largely regulates speech protected by the First Amendment, the statute has been expanded — first by the Federal Communications Commission and now by the courts — on the false assumption that the statute is the most effective (and perhaps the only) tool available to stop unwanted robocalls. Indeed, while the TCPA — as drafted — applied only to a narrow field of extremely pernicious dialing devices that use random or sequential number generators to fire scattershot messages,[4] the statute is now being applied by some courts to apply to any system with even the capacity to dial “automatically” — whatever that means.

In other words, in a bid to prevent unprotected robocalls, the TCPA is being applied to all calls — protected or unprotected — made using equipment a robocaller might use regardless of whether or not the equipment is being misused at all. That, of course, is a little like banning movie theaters to assure that no one ever yells “fire” in the crowd, or banning billboards to prevent false advertisers from abusing them.

The steady expansion of the TCPA — via rulings that have been given retroactive effect at times — has lead to a huge number of lawsuits against legitimate businesses leveraging efficient dialing technologies to engage in constitutionally protected speech, and very few lawsuits against the true robocallers engaging in unprotected speech.

So how is any of this possible given the contours of the First Amendment?

Traditionally, the TCPA escaped much constitutional notice by posing as a content-neutral regulation on speech. Although the enactment is extremely broad, it purports to not favor or disfavor any particular speech. This, in turn, triggered only a relatively low level of scrutiny requiring only that the statute be reasonably tailored to an important governmental interest to remain constitutional. While the TCPA’s ability to meet intermediate scrutiny is debatable — it sure does regulate a lot of protected speech to get to a little unprotected speech — the statute consistently passed the test because the statute presumptively regulated only unwanted messages.

Pause.

It must be acknowledged that although “unwanted” speech is yet “protected” speech, the First Amendment does yield to a listener’s preferences. That is to say, the government cannot dictate what speech you should or must hear, but it can protect you from speech that you decide you do not want to hear. Even Martin recognizes, for instance, that a government can aid the enforcement of a private “no solicitations” sign posted on a front porch. But it is for the private listener to direct the silence, not the government.[5]

But here’s the trick. The TCPA does not regulate only unwanted speech. Instead, it prohibits all speech — wanted or unwanted — that is uninvited, with the government making the value judgment that you that you do not want to hear from a speaker who calls using certain equipment unless you first ask for that speech. But this is exactly what the Supreme Court disallowed in Martin all those years ago — the government acting unilaterally to prohibit the delivery of constitutionally protected messages on the assumption that the recipient might not want to hear that message.

While this is already undoubtedly pernicious enough for lovers of the First Amendment, the TCPA contains yet another constitutional infirmity. Unlike the ordinance in Martin, the TCPA is not actually content-neutral and hasn’t been since at least 2015. Indeed, the TCPA expressly discriminates on the basis of the content of messages and in the most dangerous possible way — favoring speech by the government over speech by private actors. Specifically, the TCPA allows the government to make phone calls to collect debts using the exact same words and equipment that would subject a private actor in the same circumstances to severe penalty.
Surely, a statute that enables the government — and only the government — to make use of efficient technology to contact smartphones in a society where we all carry one would be subject to the highest constitutional scrutiny imaginable. And beginning in Brickman v. Facebook, district courts indeed began applying strict scrutiny to the TCPA recognizing that the statute’s content-based restrictions rendered the TCPA a content-specific regulation on speech. Since the TCPA is not narrowly tailored to anything and since the government does not have a compelling interest in preventing uninvited calls, the statute could not possible survive strict scrutiny, right?

Wrong.

Applying what can only be called a watered-down version of strict scrutiny a series of district court decisions have concluded that the TCPA actually is narrowly tailored to a compelling governmental interest. This is so despite the fact that no one really knows what technology the statute applies to today, and the shifting “interests” identified by these courts as “compelling” do not match the very different and narrower interests identified by Congress in enacting a much narrower statute back in 1991. Instead, applying a results-driven analysis, these courts seem to rubber-stamp the government’s post hac justification for the post hac broadening of the statute and accept the government’s characterization of these interests as compelling with little concern or analysis.

If the application of such a watered down strict scrutiny approach makes the fight against robocalls more tenable — and that’s a big if — it comes at a high cost. Strict scrutiny is the last line of defense applied by courts to prevent pernicious governmental intrusion into our most fundamental rights. Weakening this doctrine is dangerous and mortgaging decades of robust constitutional protection merely to keep the TCPA on the books seems a fool’s bargain, even if it does attest to the universal disdain shared for true robocalls.

Luckily, just last month the U.S. Court of Appeals for the Fourth Circuit — the first appellate court to address the constitutionality of the TCPA since the 2015 amendments — handed down American Association of Political Consultants v. FCC,[6] recognizing — once and for all — that the TCPA actually does not survive strict scrutiny. But there was yet another problem with this court’s analysis. A very big problem.

Rather than apply strict scrutiny to the statute as a whole, it applied strict scrutiny solely to the exemption for calls to government-backed debt. It concluded that there was no compelling governmental interest in affording a carve out for that speech. And rather than strike down the entire TCPA as unconstitutional, it struck down solely the content-specific exemption in order to salvage the statute. The net result is that the TCPA now covers even more speech than it did before and callers who had previously relied upon the exemption have seen a potential defense evaporate.[7]

Importantly, AAPC appears to be the first Circuit Court of Appeals decision to ever sever an exemption to an unconstitutional statute in order to salvage the statute. Doing so appears to run directly counter to the separation of powers doctrine — presumably Congress would not want the TCPA on the books without the exemption — in addition to the First Amendment’s restriction on regulating speech — the court created a regulation on speech that did not exist before.[8] Nonetheless, AAPC’s recognition that the statute does not survive strict scrutiny is a huge step forward for those who would see the TCPA struck down. Without question the statute is unconstitutional, so the only question now is what’s the remedy?
That very recognition permeated oral argument in yet another Circuit Court of Appeal challenge to the TCPA — this one in the free-speech-loving U.S. Court of Appeals for the Ninth Circuit in the case of Gallion v. Charter Communications Inc.[9] Indeed, at oral argument the justices seemed convinced that the TCPA does not survive strict scrutiny — and repeatedly peppered counsel with questions regarding whether severing an exemption and expanding the statute is really the best fix to the problem.

Notably, a brief submitting by Amicus Curiae Chamber of Commerce in Gallion argues that the panel has no choice but to strike the statutory prohibitions and not just the exemption: “[Supreme Court] decisions reflect the well-established principle that courts must employ remedies that ‘create incentives to raise [constitutional] challenges.’ In a free-speech case, only leveling up — eliminating the re-striction on speech — creates such an incentive. A speaker would have little incentive to challenge a discriminatory restriction on speech, if the only remedy it could obtain is the expansion of that restriction to cover more speech.”

And in a sage nod to the newly created problems unleashed by the severance approach taken in AAPC — “the invalidation of an ex-emption can itself raise new constitutional problems[…]it retroactively imposes liability on speakers who reasonably relied on that exemption while it was on the books.” So there you have it. The court in Gallion must decide whether the TCPA survives strict scrutiny and — if so — whether it can (and should) salvage the statute by striking every one of its content-specific exemptions and returning it to its broader content-neutral status. The result in Gallion will have a resounding impact — not just on the TCPA world — but on First Amendment jurisprudence as a whole.

Indeed, Gallion is properly viewed as a potential First Amendment inflection point — has society moved beyond its love of free speech in favor of a love of peace and quiet? When the last word on TCPA constitutionality is spoken, we may very well have our answer.

End notes:

[1] Martin v. City of Struthers, 319 U.S. 141 (1943)

[2] Melito v. Experian Mktg. Solutions Inc., Docket Nos. 17-3277-cv (L), 17-3279-cv (Con), 2019 U.S. App. LEXIS 12945 (2nd Cir. April 30, 2019)

[3] Ashcroft v. Free Speech Coalition, 535 US 234 (2002).

[4] Undoubtedly the drafters of the statute were aware of the hefty constitutional restraints on regulating speech and drew up a statute that was as narrow as possible to target only specific identified harms — such as tying up emergency and hospital lines with scattershot calls.

[5] It was likely with this dynamic in mind that the centerpiece of the TCPA was the creation of the national Do Not Call Registry — a consumer-driven and dynamic list that would serve as a public “no solicitation” sign to the whole listening world. By forcing callers to scrub against that list Congress was force-filtering would be telemarketers through a consumer’s posted contact preferences. That is, the government was allowing the consumer to dictate whether or not they would receive these messages — a perfectly constitutional practice.

[6] American Association of Political Consultants v. FCC, No. 18-1588 (4th Cir. 2019)

[7] The AAPC decision purports to apply the reasoning in the Supreme Court’s Reed v. Town of Gilbert, Ariz, 135 S. Ct. 2218 (2015) to reach its decision, but Reed does not seem to support severance. In Reed the Supreme Court determined that a sign ordinance was content-specific and did not survive strict scrutiny. Rather than sever any portion of the statute, however, it struck down the entire statute as unconstitutional

[8] Moreover, the AAPC court’s effort to convert the TCPA back into a content-neutral statute in order to save it was incomplete at best. The government-backed debt exemption is merely one of numerous content-based exemptions now on the books. Severing one such exemption still leaves several others imposing constitutional infirmity.

[9] Gallion v. Charter Communications Inc., Case no. 18-55667 (9th Cir)

Editor’s Note: Gallion v. Charter Communications, Inc. resulted in a finding following Duguid v. Facebook that the TCPA does not survive strict scrutiny but, like the Fourth Circuit Court of Appeals found previously, the content-specific 2015 exemption was severed to purportedly convert the statute to a content-specific restriction and save the statute under existing Ninth Circuit precedent. The Ninth Circuit denied en banc review of Duguid yesterday. The issue is likely headed to the Supreme Court. For an analysis of Duguid see here. 

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