Phantom Victory: AAPC Not the “Prevailing Party” In Supreme Court Case it Won—Denied Fee Recovery by Lower Court That Likely Cost it the Victory to Begin With

The story of the AAPC Supreme Court ruling might be the oddest in the history of the TCPA.

And that’s saying something.

Imagine winning a case on an argument you never raised after your adversary conceded it was wrong on the issue and ending up much much worse for it.

So is the saga of AAPC, who wound up all the way at the Supreme Court of the United States defending an argument it never advanced, against an adversary that gave up–and still didn’t “prevail” because none of it made any sense to begin with.

Like I said, this one is nuts.

Backing up, last July we all got to absorb the irony of watching a party sue to protect free speech—win—and thereby cost more people (maybe all of us) free speech.  And, of course, that’s exactly the bitter stew AAPC has been dining on for the last six months.

And things just got so much worse for TCPAWorld’s version of the Bad News Bears.

Not only did AAPC definitively make things worse for the First Amendment by prevailing on its free speech claim to the Supreme Court, on remand the lower court just determined that by winning its appeal, AAPC didn’t actually prevail at all.

Because that makes sense.

So here’s what happened.

There’s a statute—apparently—that says a party successfully challenging a federal statute can recover attorney’s fees for their efforts, at least in some circumstances. After “winning” its SCOTUS appeal, AAPC figured if it can’t have free speech at least it can make the government—which can no longer effectively collect its student loan debt—pay its attorney’s fees.

Wait, those are my tax dollars! Eh, the government would just waste them on something dumb either way.

I digress.

Anyway AAPC argued to the lower court it was entitled to recover fees from the government because, I mean, they won, right?


Despite the fact that the government literally gave up on appeal and did not even argue to the Supreme Court that the government-backed debt exemption was constitutional the district court found AAPC still essentially lost the case and refused to award fees.


Because the government actually “won” the case by losing on the right issue. Or, stated differently, AAPC appealed the wrong issue. Or stated even more differently—and more accurately—none of the courts involved even looked at the issue AAPC had actually raised at the outset.

AAPC’s complaint at the district court level sought to challenge the ATDS restriction of the TCPA as content-specific owing to the government-backed debt exemption. But in a weird sleight of hand, the district court and all subsequent reviewing courts—including SCOTUS, probably—reviewed the government-backed debt exemption itself for constitutionality, and not the underlying restriction. This, of course, makes no sense—and not just because AAPC challenged the restriction to begin with. It makes no sense because the First Amendment is designed to protect speech—hence it is wielded to limit restrictions on speech, not exemptions to restrictions on speech.

The entire application of the First Amendment to an exemption to a restriction on speech is something out of a Bizarro-world clown show. Its upside down and inside out.

Rather than solve the underlying analytic error, however, the plurality opinion in the Supreme Court AAPC took the opportunity to engage in judicial grandstanding and–rather than apply proper First Amendment doctrine that would have resulted in the TCPA being struck down– hooted and hollered to Americans that it (the Supreme Court) had just kept the country safe from Robocalls. It did this by converting the First Amendment into an ironing board and holding—for the first time ever—that the First Amendment does not actually protect speech, it is just “equal protection for ideas.”

So we’re not entitled to speak. We’re just entitled to speak as much as the next guy—which might be none at all.

Which brings us back to AAPC wanting my tax dollars.

After the ruling in AAPC, AAPC couldn’t actually speak a word more than it could have before. Its battle was for naught. Well, not entirely for naught, now no one else can speak either. So, thanks for that.

Since AAPC failed to get itself any additional speech—and just succeeded in silencing others—the district court determined that AAPC was not really the prevailing party.

The further irony (closer to ‘real’ than ‘Alanis’ type irony) is that the district court denying fees probably enabled the entire kerfuffle by failing to apply strict scrutiny to the restriction to begin with. By focusing on the exemption in the first instance, the district court essentially made it impossible for AAPC to “prevail” in the case, even when the government essentially gave up and admitted that the exemption was never constitutional to begin with.

Except, it always was—because exemptions can never be unconstitutional. Only restrictions on speech can be.

Get it?

The government won by losing on an issue that was never raised and could never have been lost. It was the ultimate legal jujitsu move. And none of the courts looking at the issue—including the supreme court—ever caught on. So when AAPC went to collect its fees after its “successful” appeal, the district court reminded it that the entire issue it sought out to prevail on had never actually been litigated to begin with.

How nuts is that?

Ironically, it was the same lower court that had failed to properly consider the issue to begin with that just reminded AAPC that it had not won on the issue it had actually tried to prevail on, delivering it a steaming cup of nothing as a result.

So AAPC didn’t win. It didn’t lose. It just spent 5 years litigating over an issue it never raised and the government ended up not even opposing because—again—the issue didn’t even make sense to begin with and “winning” it resulted in no net gain.

And all of this ridiculous backward talking nonsense—which I now realize is closer to annoying than ironic— has resulted in some severe damage to the First Amendment.

You can’t make this stuff up.

And you wouldn’t want to.


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