TCPA TO THE SUPREMES AGAIN?: Justices to Meet March 18 to Determine Whether “Most Financially Impactful Ruling Ever” Merits SCOTUS Review

TCPAWorld readers are well aware of the seesaw battle turned wipeout over Creasy.

The argument is simple enough to understand.

In AAPC the Supreme Court held that the TCPA’s government-backed debt exemption was unconstitutional because it favored certain speech above other speech. Rather than grant the proper remedy–which was to allow the speech the petitioner sought to engage in–the Supreme Court converted the First Amendment into an ironing board and held that “free speech” just means “equal speech.” 

So the petitioner won, but their only prize was the right to silence others–in this case the government, which was denied the right to collect on debt using autodialers and prerecorded calls without consent.

While this ruling was viewed as something of a victory in the fight against robocalls–Justice Kavanaugh’s triumphant (if not grandstandy) ruling denounced automated calls as the one thing all Americans agreed to hate–it was a complete disaster for free speech. No longer did the First Amendment protect speech. Instead, the Supreme Court converted once dicta from a Scalia dissent into binding Constitutional doctrine–the First Amendment assures only equal protection of ideas, not free speech.

Trust me–that one WILL come back to haunt us.

For the time being, however, TCPAWorld was faced with another conundrum. Well, really two conundrums. In the first instance, the TCPA remains riddled with content-based exceptions that are of the precise ilk that the Supremes found to be unconstitutional in AAPC. So, it seems, all of the exemptions–like the one allowing schools to notify students of snow days–must be jettisoned to save the overly broad TCPA. Or, of course, the TCPA–which is the single broadest restriction on constitutionally-protected speech in American history–is flatly unconstitutional.

I wonder which one is the right answer? Hmmm….

But the second conundrum is the one that animates this blog.

Can the TCPA be enforced during timeframes that it was unconstitutional?

Or, stated alternatively (and perhaps less accurately), was the severence of the government-backed debt exemption by the Supreme Court retroactive?

To be sure, the Courts love to find that the severence was retroactive when it serves to promote claims against robocallers, but also love to find the severence was not retroactive when it serves to protect the interest of government-backed debt collectors. Because… sound legal reasoning is dead, except on

I’m kidding. Sort of.

But in seriousness, there was one Court brave/bold/Czarish enough to reach the right conclusion. There is just no way the TCPA can be enforced during timeframes the Supreme Court found it was unconstitutional. That’s literally what being unconstitutional means–the statute cannot be constitutionally enforced.

That decision, of course, was Creasy. And–as I described it at the time and repeatedly afterward–Creasy is, without question, the most financially-impactful legal decision of all time. Literally trillions in potential statutory exposure–generated during the peak years of the robocall epidemic–were wiped away with the flick of a judicial wrist.

Yet, despite the incredible financial impact of the ruling, it was still the undoubtedly correct on. There is simply no price to be put on the integrity of the American judicial system–and when courts start enforcing unconstitutional enactments, that integrity evaporates completely.

Creasy was originally followed by a handful of courts–including in a ruling brought to you by Squire’s vaunted TCPA team–but eventually the darksiders swarmed and a hoard of rulings rejecting Cready were handed down, eviscerating the argument.

In the meantime, however, one of the original rulings following CreasyLindenbaum–was taken on appeal to the Sixth Circuit. The panel– including (over Defendant’s daring objection) a judge who apparently had ties to a Plaintiff’s lawyer that brings TCPA suits for a living–made relatively short work of the Creasy argument, seemingly closing the door on it for good. (Although the argument is technically out for determination by the Ninth Circuit Court of Appeals currently–so maybe not.)

Well the Defendant in Lindenbaum–who has found support from the ACLU–has now filed papers to have the issue reviewed by the U.S. Supreme Court. And I am extremely interested in what the Supremes will do.

They (the nine supreme court Justices) have a meeting set on March 18, 2022 to decide whether to review this case or not. Since I know their clerks read my blog on occasion–everyone does–here’s why I think the case SHOULD be reviewed:

  1. Creasy is the most financially-impactful judicial ruling in history. So…yeah. Enough said.
  2. Creasy helps to preserve the integrity of the American judicial system. Courts that are continuing to enforce the TCPA during timeframes that it was unconstitutional are doing violence to their station.
  3. AAPC contains extremely dangerous language minimizing the importance of the First Amendment’s free speech protections and exalting the importance of “equal protection of ideas” above the fundamental tenets that the government cannot restrict content-based speech absent strict scrutiny review. The sooner AAPC can be explained, narrowed, and put in a corner never to be heard from again, the better.

The briefing seeking cert.–which makes an admirable, if not overly-technical, case for review–is found here: Realgy-Lindenbaum – Supreme Court Petition without Appendix

The government’s brief in opposition is here: 21-866 Realgy v. Lindenbaum et al. Final

Reply here: 21-866ReplyBriefForPetitioner

We should know whether the Supremes heed the Czar’s call for review


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