Supreme Court Spills Milk, Refuses to Clean it Up With Latest TCPA Cert Denial

Hi folks

Sorry for the limited content this week, I’ve been tied up at Leads Con. Spoke for 3 hours Monday–let me know if you want the deck–and turns out I was just getting started.

More pics soon I promise. (I know how you love that.)

In any event, figured I’d give a quick update on the Lindenbaum cert petition to the Supreme Court.

As I reported last week, the Supremes were set to meet on the 18th to discuss whether or not to review the Sixth Circuit’s ruling holding that AAPC retroactively saved the TCPA.

The backstory here is roughly as follows:

  • The First Amendment is supposed to protect the right of Americans to free speech
  • In AAPC, however, the Supreme Court held that the First Amendment really just guarantees equal speech. So the government can silence you, as long as it silences everyone else too. Good ruling.
  • The Lindenbaum appeal offered the Supremes a chance to fix the rather shortsighted approach taken in AAPC. But the Supremes decided they had better things to do than repair the First Amendment.

Really what the issue comes down to is whether a content-specific restriction on speech can be restored to content neutrality through the severance of content-specific exemptions, leaving the restriction to be enforced against everyone moving forward and against only disfavored speakers looking backward. 

Of course that sort of uneven enforcement is precisely what makes statutes unconstitutional in the first place. And since the TCPA is just the broadest restriction on constitutional speech in our nation’s history, one (literally just me) would think that the Supreme Court might be interested in evening out the enforceability of the statute both forward and backward in time. (Three years ago this sort of inaccessible time travel morass would have made me think of tachyons but now it makes me think of the MCU timeline.)

In any event, the Supreme Court is not taking up the Creasy issue. So unless the Ninth Circuit decides to take the issue head on and split with Lindenbaum we are stuck with courts enforcing the TCPA during timeframes that it was unenforceable, because the Supreme Court refused to get involved.

Of course, the TCPA remains unconstitutional owing to the fact that AAPC dealt with only a single content-specific exemption, but the TCPA remains full of other exemptions that are just as content-specific. But that issue will have to await another trip to the Supreme Court…


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