Real quick, we’ve been following the seesaw battle over Creasy at the district court level recently–although its really more of a buzz saw and than a seesaw right now— but there are two major appeals pending to the Courts of Appeal.
The Lindenbaum case–which is slightly ahead of the Ninth Circuit’s Perez case–is nearing briefing completion and we just received word that the power-house civil rights organization, the ACLU has, submitted a surprise brief supporting Creasy.
In the ACLU’s view the Defendant cannot be held liable under the TCPA’s discriminatory statutory scheme that punishes only disfavored speakers. (I mean welcome to the party fellas but I’ve been screaming that at the top of my lungs for like years now.)
As the ACLU puts it:
[N]o amount of notice can cure an equal treatment infirmity. And
unequal treatment is precisely what the Government’s preferred outcome would bring… Such a result could provide a curious period of enforceability for even obviously unconstitutional laws: a disfavored speaker, or a vulnerable class of person, could still be subject to liability for violating a statute that was plainly unconstitutional at the time the violation took place.
Testify friends. Testify.
(And Dear ACLU: please stick around and pay careful attention to the TCPA more broadly because its destroying the First Amendment and we could use your help. Thanks.)
Brief is here: ACLU Brief
We’ll keep an eye on this.