WOAH: The ACLU Just Filed an Amicus Brief Supporting Creasy and it is REALLY Good

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.

 

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4 Comments

  1. Eric

    I read TCPAWorld with interest as an old time TCPA defense attorney for faxes

    There is / was a disdain for faxes that has morphed to texts / robocalls – agreed

    My question is whether you think the TCPA is unconstitutional from 2015 to 2020 or whether only the provision relating to robocalls (content based restriction) made that Section of the TCPA (robocalls) unconstitutional

    I have argued in a Motion to Dismiss (Premier SDFL) that the TCPA was unconstitutional – a statute cannot be a little bit unconstitutional

    As a fallback I also filed a Motion to Stay to let the Courts work it out as the SDFL Judges issued contradictory decisions on the same day in December 2020

    Thanks

    Bill Hayes 303 514 0658

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