ROUND 1 TO THE BAD GUYS: FTSA Survives First Serious Constitutional Challenge–But it Won’t Last

Being a federal judge is a tough job.

You have to clean up all the screwed up things Congress does. And sometimes–and this is even worse–you have to clean up all the screwed up things state legislatures do.

Tall task.

Take the Florida Mini-TCPA, for instance. This thing is plainly unconstitutional–and for a number of reasons. Although it is a restriction on speech it is impossible to know what it applies to–what’s an autodialer? what’s a sales call? who is exempt? I dare you to answer those questions in plain English–so it is void for vagueness. It is also plainly a contents-specific speech-control paradigm that violates the First Amendment.

The good folks at Subway Franchise Advertising Fund took the first crack at raising these arguments recently and they didn’t win. But that’s ok. It takes a very brave judge to strike down a statute on constitutional grounds and many ties the federal bench needs several exposures to an argument before it sticks. So I am grateful that SFAF took a shot here, although there is one tweak needed (badly) to their argument.

The case at issue is Turizo v. SFAF. I can send you a copy if you want to read it.

So let’s start with the bad argument. SFAF argued that only systems that meet the Facebook definition of ATDS can be an autodialer under the Florida statute.

That argument is– how can I put this gently?– ridiculously bad (at least standing alone).

The TCPA defines ATDS to include an ROSNG. The Florida autodialer definition does not. So Facebook’s requirement of ROSNG usage is entirely unrelated to Florida’s definition. So that’s just a terrible argument.

In fairness, however, SFAF likely brought the argument primarily to tether its “void for vagueness” argument. SFAF pivoted and argued, in essence, if the FTSA isn’t coextensive with the TCPA then the FTSA’s autodialer definition is meaningless and should be struck down. The second part of that sentence is correct–the FTSA’s autodialer definition is meaningless–but there was no reason (IMO) to pin that reality to Facebook.

In other words, by leading with a weak FTSA = TCPA argument to frame out the void for vagueness pitch. I think SFAF simply shot itself in the foot. BUT they still did a nice job of raising void for vagueness in the first instance. And I want to see more of that from others.

SFAF also raised–well–the broader First Amendment implications of the FTSA through the lens of Reed and AAPC. And I LOVE the way the Turizo court framed the issue directly– does Reed and AAPC (on the one hand) crush and destroy the old Central Hudson test?

That is the correct question. The correct answer is YES, where the restriction is content specific and no where the restriction is content neutral.

The Turizo court didn’t quite get there– not sure SFAF gave the answer as crisply as I just did– and concluded that because neither Reed nor AAPC dealt with commercial speech it was impossible to say, for sure, whether the Central Hudson test had been abrogated (but it has been.)

Plus the Turizo court had an easy way to bail itself out– the Eleventh Circuit has continued applying Central Hudson post-Reed. So Turizo went ahead and adopted the old CH test, notwithstanding the fact that the Eleventh Circuit’s decision was totally unrelated.

Bottom line: SFAF took a first brave step in challenging the FTSA’s constitutionality. It wasn’t perfect–they also bloated it up with junky preemption and dormant commerce clause arguments that were going nowhere–but they tried. And I give them credit for it.

But the FTSA is doomed. It simply will not stand the test of time because it IS unconstitutional. It will take a few knocks on the door, but eventually the First Amendment will be answered.

And, in all likelihood, the Troutman Firm will be the ones holding the door.

Until then, we’ll keep an eye on this for you.


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