ORAL ARGUMENT HELD IN LINDENBAUM: Free Speech Hangs in the TCPA Balance (Again)

A HUGE oral argument took place yesterday–in case you missed it.

As I’ve explained a few times now, the Creasy argument–that the TCPA is unenforceable from November, 2015 to July 6, 2020–is the single BIGGEST AND MOST IMPORTANT legal ruling in American History–at least as judged based upon the the financial impact of the ruling.

Literally TRILLIONS of potential TCPA statutory exposure was wiped off the books as a result of the determination that the TCPA was unconstitutional–and therefore could not be enforced–to robocallers during the HEIGHT of the robocall epidemic. As wild–and seemingly unsatisfactory–as that rulng might be, the alternative is even worse–if Creasy is not the law then the government is free to restrict disfavored speech and permit favored speech at its whim. It can literally deny the right to free speech to the masses and allow only certain speakers to share their message with the public.

So trillions in statutory damages on the one hand, or freedom of speech as we know it, on the other.

I wonder which one the Plaintiff’s bar is taking?

In Lindenbaum the Sixth Circuit is asked to decide whether the government can pick and choose who gets to speak and who doesn’t. AAPC seems to have answered that question–a big ole “no”–but the Supremes stopped short (as they love to do) of really answering the question. So now the Sixth Circuit is tasked to do so.

Oral argument on the subject took place yesterday and it was fine. It lacked the sparkle and audacity of the exchange in Facebook last year. But the positions of each side were adequately represented by oral argument, even if in rather ho hum fashion.

You can listen to the oral argument yourself here but these are my take aways:

  • Plaintiffs’ best argument is that “Courts unlike legislatures determine what the law is, and not what the law should be.” On one breath they distinguish Langraf and remind that judicial rulings are always given retroactive impact. So why wouldn’t AAPC’s severence ruling?
    • That’s neat and tidy but it also runs roughshod over the basic “equal protection” ideas that permeate the AAPC ruling.
  • It is critical for the Plaintiffs that the Sixth Circuit view AAPC as ruling only the government-backed debt exemption–and not the underlying TCPA restriction–was struckdown in AAPC. Notably, however, even if they get this win–i.e. that the Sixth Circuit frames the issue in their favor–that is only step 1 to victory. If Defendants can win on this single issue, conversely, they will win the entire appeal. Based on questioning from J. Straunch, however, the panel may be leaning in favor of Plaintiff on this issue.
  • Plaintiffs’ advocate did a nice job of framing the impact of AAPC on government-backed debt collectors. Yes, she concedes, their conduct was suddenly made illegal–but they’re safe because the due process clause will not allow exposure on a party that lacked “fair notice” of liability under the TCPA.
    • Again, this feels like a “must win” argument for the Plaintiff. I can’t see the Sixth Circuit ruling in favor of Plaintiffs in a manner that creates springing liability for callers that relied on a content-specific exemption.
  • Judge Bush seemed particularly bothered by the impact of the AAPC ruling resulting in allowing some speakers to be protected and others to face exposure based solely on the content of their speech. He pushed the parties hard on this issue–demanding from the US authority for the proposition that different speakers subject to different remedies does not violate the First Amendment.
    • The US Attorney mostly fell back on “disparate impact” cases in response–totally not the same thing–but did accomplish a brilliant re-cast
  • In the most stunning and exciting exchange during the oral argument J. Bush pushed the US attorney into admitted that government-debt collectors could not be held liable under the TCPA prior to July 6, 2020: “What’s the United States’ position on whether the government-backed debt be  collectors can be penalized?”  Answer: They can have violated the statute but can’t be held liable “likely in many cases.” EESH What a hedge. But it was a big opening that Defendant really never took advantage of–the government expressly held open the possibility that debt collectors might still be liable under the TCPA. Nuts.
  • J. Bush consistently noted he was “bothered” by the disparate remedies for speech based upon content.
  • The US also did a nice job of reminding the Court that the Supremes did not doubt the sincerity and intent of the original robocall restriction–this is likely true because only one of NUMEROUS content specific exemptions was challenged in AAPC.
  • Defendant’s lawyer–my buddy Ryan–did a very nice job arguing with force and verve for free speech. But he was cut off very early by J. Stranch positing: “Your constitutional issue [doesnt] trump due process.”
  • Ryan brilliant retorted that it doesn’t. Defendant’s argument–he explains is that the severence applied only prospectively–so the exception remains present to protect government collectors.
  • No one on the panel seems to like that, however. This seems to be a “void ab initio” bunch. But J. Bush re-casts the issue as one in which the debt collectors’ due process rights are protected because the TCPA is enforceable against NOBODY during the timeframes that the statute was content specific.
  • There’s an interesting pause as if Bush’s position struck a chord with Ryan–it was a hell of an argument–but Ryan stuck to his original position; its not that the entire restriction is unenforceable, its that the severence was prospective only.
  • Defendant’s position is revealed to be that the severence clause in the TCPA cannot be deployed to create retroactive liability without clear direction from Congress. I love this argument, but it was a bit esoteric and seemingly went right past J. Stranch. J Bush also seemed to struggle with the application of Langraf –and Plaintiff’s lawyer torched this argument in rebuttal. Still, I think Defendant is absolutely correct on the application of Langraf and I love it.
  • J. Stranch absolutely hammered Ryan about his client’s awareness of the TCPA’s restrictions: “Your client was fully aware.” It was such a beating that Ryan had to retreat to an extra-record assertion: my guys are innocent your honor. I didnt like that, but it did seem to break Stanch’s rythm.

In the end it appears J. Stranch views AAPC as doing nothing more than deeming an amendment void. Since the amendment is void the TCPA was content neutral. So it can be enforced against Defendant, even if it can’t be enforced against debt collectors.

J. Bush seems to have bought into the idea that a content specific impact on speech–be it via remedy or otherwise–is impermissible. But he does not seem sold on the “prospective only” severance vehicle defendant is pitching. His observation that the entire restriction is just plain not enforceable against anyone is a far simpler and more accessible answer.

The last panel member–Gibbons–never said a word. And it will likely be her voice that tips the scales.

This one is too close to call folks. We’ll keep an eye out and alert you as soon as a decision is available.


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