Well folks the big TCPA appeal to the US Supreme Court is now fully briefed, and it looks to be a doozy. Although some are saying SCOTUS is likely to issue only a narrow ruling here, we are predicting big things out of the decision–both in terms of limiting the scope of the TCPA and in terms of enhanced protection for our First Amendment freedoms.
Here are all of the filed briefs in case of interest:
As I have written, and spoken about, repeatedly now, the most likely outcome is that the Court applies strict scrutiny to the TCPA’s autodialer restrictions and narrowly interpret’s the statute’s ATDS definition in order to salvage the statute. You can read my “expert analysis” here. And for all of my various writings on the TCPA and the First Amendment click here.
But perhaps the best synopsis of the argument comes from the Respondent’s introduction. Here it is for your consideration:
Because the cellphone-call restriction is content- and speaker-based, it can survive only by satisfying strict scrutiny. The Government has wisely abandoned any argument that the restriction meets that test. And even if the cellphone-call ban were content-neutral and thus subject only to intermediate scrutiny—it would still violate the First Amendment, because its sweeping restrictions are hopelessly ill-tailored to the Government’s asserted interest in protecting privacy from unwanted communications. Indeed, Congress and the FCC have repeatedly indicated that the privacy interests protected by the TCPA do not justify restrictions on the kinds of non-commercial and non-telemarketing calls covered by the cellphone-call provision.
Inexplicably, though, the [lower] court declined to follow this Court’s standard practice and invalidate that restriction. Instead, it purported to “sever” the government-debt exception, judicially expanding the scope of the restriction and outlawing speech that Congress deliberately exempted from regulation.
That result runs counter to basic constitutional principles and would wreak havoc on First Amendment jurisprudence more broadly. When a content-based restriction on speech violates the First Amendment, the proper remedy is to invalidate that restriction—not a speech-promoting exception. That rule follows from the text of the First Amendment, which forbids only laws “abridging the freedom of speech”—not exceptions that freely permit speech.
This Court has always struck down content-based speech restrictions that fail constitutional scrutiny, and has never struck down a speech-promoting exception or conducted the sort of “severability” analysis the Government proposes here.
And even if such an analysis were permissible in First Amendment cases, severing the exception would nonetheless be inappropriate in this case, because the judicially-rewritten statute is still unconstitutional.
The Government offers no good reason to abandon settled First Amendment principles and create a brand-new “severability” doctrine that would encourage judges to expand unlawful speech restrictions. Automated calls may be unpopular, but so are many types of speech protected by the First Amendment. This Court should invalidate the cellphone call ban and let Congress, the FCC, and the private sector address the challenges posed by automated calls in ways consistent with the Constitution.
Lots at stake here folks. And don’t worry, we’ll break down the oral argument as soon as it is available. Stay tuned!