TCPA Coffee Break: Yet Another Court Finds TCPA Is Unconstitutional Restriction on Free Speech—Upholds it

Quick one to digest along with an almond biscotti.

First, a short but incisive rant: Free speech isn’t what it used to be. In the old days if a statute was found unconstitutional for violating the First Amendment the statute would be struck down. These days—the statute gets expanded. Am I the only one who thinks this is nuts?

Rant over.

So we’ve already covered the Ninth Circuit and Fourth Circuit Courts of Appeal concluding that the TCPA is unconstitutional—it is—but yet upholding the statute. The trick is that the Courts severed a content-specific exemption in the TCPA purportedly converting the statute to a content neutral enactment—it isn’t—that purportedly survives intermediate scrutiny—it doesn’t.

The real problem in the analysis applied by these courts is the focus on whether or not a content-specific exemption is “narrowly tailored to a compelling governmental interest”—the old “strict scrutiny” test—when they should really be evaluating whether the restriction on speech meets this test. The TCPA is, after all, unconstitutional for what it improperly prohibits, not for what it imprudently permits.

But we can add another decision to the “expand the illegal statute” column. In  Katz v. Liberty Power Corp., Civil Action No. 18-cv-10506-ADB, 2019 U.S. Dist. LEXIS 162793 (D. Mass. Sept. 24, 2019) the Court found: i) the TCPA is a content specific restriction on speech (yep); ii) and is subject to strict scrutiny (yep); iii) and that the content specific government-backed debt exemption does not survive strict scrutiny (wrong analysis); so iv) the exemption should be severed to salvage the statute (wrong remedy and doesn’t work anyway since other content-specific exemptions still exist and, oh by the way, the statute doesn’t survive a proper intermediate scrutiny review anyway since there are no clearly defined alternate channels available to engage in roughly equivalent speech.)

To make matters more enjoyable, the Court also found that a purported professional TCPA Plaintiff—what a career choice—had standing to pursue his claims and distinguished my often-cited-but-rarely-duplicated win in Stoops. (I hate seeing my big win distinguished so, new rule defense bar—if you want to raise this defense call me first. I can help. I’m serious. Thanks.)

Plus the Court rejected the Defendant’s old school arguments that: i) you have to pay for a phone to have standing; and ii) only a “called party” has standing.

Ok. Coffee break over. Back to the grind.




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