This Could Be Big: Facebook Files Cert Petition Seeking Supreme Court Free Speech Review of TCPA

Let’s start with this:

The remedy for an unconstitutional abridgement of speech is not less speech and broader abridgement.

If that single principle winds up enshrined in an eventual Supreme Court TCPA ruling then October 17, 2019 could, indeed, end up being a red-letter date in First Amendment history.

Facebook today asked the U.S. Supreme Court to review whether the TCPA–the broadest restriction on constitutionally-protected speech in American history– survives First Amendment strict scrutiny analysis and to strike the statute’s automated telephone dialing system restrictions if not. The petition comes following denial of en banc review by the Ninth Circuit Court of Appeal in the Duguid putative TCPA class action suit.

In Duguid the Ninth Circuit had, indeed, found the TCPA to be an unconstitutional abridgment of speech yet–remarkably–decided that the remedy was to broaden the statute to apply to even more speech. This was a ruling with profound potential impact far beyond the TCPA as the proper application of the Supreme Court’s strict scrutiny paradigm protects the free speech rights of every American.

In the Petition, Facebook forcefully urges the U.S. Supreme Court to reverse the Ninth Circuit’s decision. The Petition argues that the decision to strike down the TCPA government-backed debt exemption–rather than striking the TCPA’s ATDS prohibition– was an “extraordinary step” that denied “Facebook any relief from the prohibition it was alleged to have violated and which it successfully argued was unconstitutional.”  And, Facebook argues, the Ninth Circuit “undertook to rewrite the prohibition to abridge even more speech… a holding turns principles of the First Amendment, severability, and standing on their heads.”  In Facebook’s view, this ruling was both “profoundly wrong and profoundly important” because:

[the Ninth Circuit] invalidated an Act of Congress under the First Amendment, but then contravened principle and precedent by denying the challenging party any relief and rewriting the statute to prohibit more speech.

Later the Petition is even more direct:

Having found the TCPA’s prohibition to be an unconstitutional abridgement of speech, the Ninth Circuit should have invalidated the prohibition. It had no license to rewrite the statute to broaden the unconstitutional prohibition by eliminating an exception that Facebook never challenged and did not abridge anyone’s speech.

Tough to disagree.

From a nuts and bolts perspective the petition challenges primarily that the Ninth Circuit applied strict scrutiny to the wrong portion of the TCPA. Rather than analyze the content-specific exemption–which is what the Court did–Facebook urges the proper review was to analyze the challenged restriction on speech–which the Court did not do. Here’s the meat of the argument:

“The Ninth Circuit’s analysis is deeply flawed as a matter of severability doctrine and First Amendment principles. First, by starting from the mistaken premise that the speech-permitting government-debt-collection exception was unconstitutional, the Ninth Circuit reached an untenable conclusion. Facebook never challenged the constitutionality of the government-debt-collection exception as such. Facebook’s security texts do not even implicate the exception, and Duguid never accused Facebook of violating it. Instead, what Duguid alleges that Facebook violated and what Facebook challenged as unconstitutional was the TCPA’s basic prohibition on ATDS calls. To be sure, Facebook argued that the government-debt-collection exception (along with the emergency exception and the FCC’s authority to exempt calls deemed to advance the TCPA’s purposes, 47 U.S.C. §227(b)(2)(B)) rendered the prohibition content-based and unconstitutional. But it was always the speech-restricting prohibition that Facebook assailed as unconstitutional, as even the government recognized in its rehearing petition. U.S.Reh’g.Pet.14. Having prevailed on that argument, Facebook was entitled to have the prohibition invalidated, with the only remaining severability question being whether anything else in the statute should fall along with the prohibition.”

The Petition also challenges the Ninth Circuit’s “wildly overbroad” ATDS approach adopted in Marks.  Facebook urges that the Ninth Circuit’s “nearly limitless view of what constitutes an ATDS is wrong as a matter of both basic statutory construction and constitutional avoidance principles.”  Crucially, in Facebook’s view the Marks definition converts every smartphone in America into an ATDS, which has dire practical consequences:

The statutory question has enormous practical consequences, as Americans deserve to know whether they have been inadvertently toting ATDSs around in their pockets and purses and risking $1,500-a-call fines.


The Petition is a remarkable piece of advocacy and the cert. bid carries the full support of Unsurprisingly the Squire Patton Boggs TCPA Team will be assisting amici wishing to support this extremely-important cert. bid. If you are interested in signing up to help the cause please reach out right away as time is of the essence.

A copy of the petition is available here: Facebook Cert Petition.