First Amendment Morass: Ninth Circuit Strikes Down Statute Regulating Automated Calls on the Basis of Content—Misses The Irony

I love a little irony in the morning. Or in the afternoon. Really anytime is a good time for irony. How about right now.

The Ninth Circuit Court of Appeal just applied strict scrutiny to a Montana state “anti-robocall” enactment that applied on a limited basis to only certain categories of calls, including—but not limited to—political calls. See Victory Processing, LLC v. Fox,  No. 18-35163, 6:17-cv-00027-CCL. The Ninth Circuit concluded that the statute improperly restricted political speech in a manner that is inconsistent with the First Amendment and struck the statute down.

Why is that ironic? Because the Ninth Circuit has just twice upheld the far broader TCPA—which also regulates political speech and all sorts of additional kinds of speech—applying the same standard. See Dugid and Gallion.

So what’s going on here?

Well believe it or not, the result appears to turn on whether a statute is written as a restriction subject to content-specific exemptions or as a content-specific restriction in the first place. In other words, a statute that says “you cannot use robocalls to discuss politics” would be (and just was) struck down but a statute that said “you cannot use robocalls unless you are discussing something other than politics,”  would survive, albeit with a severance of the content-specific exemption. Confused? Me too.

Although the First Amendment is designed to prevent unlawful regulation of speech two circuit courts of appeals—including the Ninth Circuit—have recently expanded the TCPA by removing an content-specific exemption from the statute. This is done because statutes that impose content-specific restrictions on speech—like the TCPA and the Montana Robocall Act at issue in Victor Processing— are subject to higher scrutiny levels than content-neutral statute. The basic concept is that although the First Amendment says the government shall make no law abridging the freedom of speech, in reality the government can make such laws but only if they regulate speech in an even-handed way that does not benefit one type of speech over another. Where strict scrutiny is applied: “[a] statute is [only] narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.”

Although both the TCPA and the Montana Robocall Act are content-specific, they are different in that the TCPA contains a content-specific exemption and the Montana ordinance contains a content-specific restriction. To be sure the result is the same—speech is regulated based upon its content. Yet the remedy the Ninth Circuit applied to these statutes could not be more different. With respect to the Montana Robocall statute the Ninth Circuit struck down the enforcement of the restriction entirely because it improperly hampered political speech. With respect to the TCPA, however, the Ninth Circuit severed a content-specific exemption, keeping the law on the books and expanding the TCPA to cover even more speech (including political speech!).  So the same speech the Ninth Circuit just held Montana could not constitutionally regulate remains subject to nearly identical regulation under the TCPA.

This obviously makes no sense. The TCPA’s restrictions on speech do not survive strict scrutiny anymore than the Montana ordinance’s do— the TCPA is not narrowly tailored to anything since no one even knows what it covers— and the solution is the same; the statute should be struck down– not broadened– as Victory processing demonstrates.

What is really remarkable here is that it looks like one hand didn’t know what the other hand was doing.  The Victory Processing panel appears to have been unaware of the rulings in Duguid and Gallion –it does not make note of these rulings and affirmatively (and inaccurately) notes “[w]e have not had the occasion to evaluate the constitutionality of a content-based regulation of robocalls until now.” In reality, of course, the Ninth Circuit has twice evaluated the constitutionality of a content-based regulation of robocalls within just the last few months. Just another day in TCPAWorld.

On the plus side, the Ninth Circuit panel recognized that some automated calls are “useful, such as automated appointment or payment reminders.”  It also focused on a narrow area where automated calls are problematic:  “Congress was concerned that unsolicited automated calls—predominantly to landline telephones—were invading individuals’ homes and tying up their phone lines.” Make use of this as you will.



  1. I don’t think the reason for this decision is mysterious or that it is any way inconsistent with the Ninth CIrcuit’s previous decisions upholding the TCPA and severing the government debt exception, In the Victory case, the plaintiff had been injured by the very provision it was challenging, i.e., the provision that prohibited using an autodialer to promote a political campaign or for any use related to a political campaign. In addition, the Ninth CIrcuit found that the content based provision in the Montana statute struck at the heart of the First Amendment, i.e. . political advocacy and that Montana had not produced any evidence that political calls posed such a great threat to privacy that singling them out was justified under the Constitution. The Ninth Circuit compared that lack of evidence to the affirmative evidence identified by Congress, when passing the TCPA, of the enormous threats to privacy caused by commercial calls. Furthermore, it is well settled that commercial speech is protected to a lesser degree under the Constitution than political speech. The Victory decision is therefore completely consistent with the Ninth Circuit’s earlier decisions upholding the TCPA and severing the government debt exception, and is not confusing at all, in my opinion.

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