As we reported last week, a HUGE appeal is underway of the ruling in Lindenbaum, which will determine whether or not the rule of Creasy—holding that the TCPA is unconstitutional as applied to calls made prior to July 6, 2020–remains a viable defense or is another false start.
The brief–which can be found here–advances most of the arguments you’d expect to see.
The primary argument is that SCOTUS never actually addressed the constitutionality of the TCPA’s ATDS restriction in AAPC to begin with. Rather, the argument goes, the Supreme Court focused exclusively on the viability of the government-backed debt exemption.
Superficially this argument has some appeal since the Supreme Court dedicated precious little time to addressing the scope of the TCPA’s dialer restrictions and the ruinous effects of the content-specific exemptions that riddle the statute. But the root harm the First Amendment is designed to prevent–of course–is the unlawful restriction of speech based upon content-specific criteria. And, without question, the Supreme Court found that the TCPA improperly restricted speech based upon content–which is axiomatically unconstitutional.
Sticking with the myopic focus on the government-backed debt exemption, the Appellant also argues the SCOTUS severability analysis focused exclusively on the exemption and not on the restriction. Now, this is certainly true, but one wouldn’t expect the Court to sever a restriction in order to save an exemption–indeed, that’s backward talking nonsense. So this argument doesn’t really move the needle.
Finally the Appellants get to the good stuff–retroactivity. That’s what Creasy is really all about. Did the Supreme Court retroactively invalidate the government-backed debt exemption in AAPC or not? If so, then–being intellectually honest–that would mean the statute was never content-specific to begin with (based upon the intellectually-dishonest fiction of nunc pro tunc eradication of a previously viable defense). Of course, that would also mean that individuals that called on the government-backed debt exemption over the last four years would lose all ability to rely on that defense.
You see the tension here? Either the TCPA was content-specific at earlier periods in time–in which case it was unconstitutional under the First Amendment. Or a bunch of people who relied on a defense to make phone calls just lost their livelihoods.
Justice Kavanaugh, writing for the plurality in AAPC, addressed this issue in Janus-like fashion stating–simultaneously and irreconcilably–that the government-backed debt exemption (like Schrodenger’s cat) both did and did not exist at earlier periods of time.
Thus, he explained, the TCPA remained viable to prosecute wrongdoers since the exemption does not exist, but the TCPA also cannot be used to prosecute callers of government-backed debt because the exemption also did exist.
You see how this works?
Yeah, me neither.
Well the Appellant counsel in Lindenbaum don’t have the luxury of being Supreme Court justices that can take two inconsistent positions in a single sentence of a baffling footnote. No, these are mere mortals that actually have to try to make sense.
Unsurprisingly they’ve solved the dilemma in favor of a retroactive void ab initio approach to the government-backed debt exemption. Translation: the the Lindebaum appellant is arguing that the government-backed debt defense never actually existed and anyone who ever relied on it can be immediately sued, even though what they did was legal at the time the conduct was engaged in.
That is, of course, the ultimate tension resolved in Creasy but in reverse: logic does not allow anyone to have it both ways. Either the ice cream scoop is in the cone or it is on the sidewalk. It cannot be in both places simultaneously as Justice Kavanuagh suggested.
So what does all of this mean?
Well, obviously the outcome of Lindebaum remains the most important decision in the history of mankind (no seriously–I explained that here) for other reasons, but if you are a caller who made calls in reliance on the government-backed debt exemption anytime since November, 2015 chances are good that you are doubly interested in the outcome here… not only might the TCPA be upheld as constitutional for your calls, that defense you relied on in making calls might be all gone.
And that, of course, might mean certification and crippling damages–as that case over the 2011 faxes from earlier this week demonstrates. And YOU might be liable for those calls.
But also, TCPAWorld.
Still some time to submit amicus briefs if you’re interested in the supporting the right outcome here–and you are. Call me to discuss. I’ll get to you in order of my personal preference. J.k I love you all equally. Mostly.