So, the TCPA is unconstitutional. Let’s just start with that.
While the DNC provisions are just fine, the regulated technology provisions represent the single broadest restriction on constitutionally-protected speech in our nation’s history.
The statute has survived various First Amendment challenges largely because courts have focused on its purportedly content-neutral prohibitions. Except the statute isn’t content-neutral at all. It is riddled with content-specific exemptions–many of then created by the FCC–because the original restriction was so breath takingly broad that it covered a bunch of critical speech that we cant live without.
But the very fact that the statute swept so much important speech within a restriction designed to prevent nuisance calls is what makes the statute patently and obviously unconstitutional. Yet it lives on. Mostly.
On July 6, 2020 the Supreme Court decided AAPC in which it gave the TCPA a special pass. It recognized that the statute actually was content-specific–of course it is–but it held that it would sever the one content-specific exemption it was reviewing (although there are a dozen others.) The Supreme Court seemed to assume that by severing the exemption it would save the statute moving forward–although it also managed to take away speech from third-parties (and converted the First Amendment into an ironing board) in doing so.
Since AAPC was handed down two debates now rage regarding the constitutionality of the TCPA: i) can it possibly be enforced given the presence of other content-specific exemptions that continue to live on after AAPC?; and ii) is the TCPA enforceable as to conduct arising prior to AAPC severing the content-specific exemption it reviewed?
While the answer to the first question appears to be a definitive “no” to date the district courts have punted on the issue holding that they cannot review the FCC’s creation of content-specific exemptions under the Hobbs Act (itself a dubious proposition after yet another Supreme Court TCPA ruling in PDR Resources.)
But the second question has yielded a more positive answer for TCPA defendants in some courts. Starting with a decision in Creasy v Charter Communication a handful of courts have recognized the true impact of AAPC. The Supreme Court had definitively held that the TCPA was an unconstitutional content-specific restriction on speech, after all. And while its election to sever (i.e. delete) the challenged exemption might cleanse the statute moving forward, there is simply no question that the TCPA was unconstitutional from November, 2015 to July, 2020. And an unconstitutional statute simply cannot be enforced by a federal court. That’s what being unconstitutional means.
Still other courts (and lately, many other courts) have rejected this proposition. They have clung to a legal fiction that the severance by AAPC somehow worked backward in time. As if the exemption never existed in the first place. Thus, they continue to enforce an unenforceable statute, closing their eyes to the reality of the TCPA being applied with unconstitutional unevenness during those time frames.
While the actions of these courts are repugnant to constitutional principles in my view, they are not entirely surprising. The TCPA is the federal government’s crown jewel in its fight against robocalls. Refusing to enforce the statute during a timeframe that marked the height of the robocall epidemic would give a free pass to callers that made hundreds of billions of calls–amounting to trillions of dollars in statutory damages.
Indeed, I have called the Creasy ruling the single most financially-impactful district court ruling in history. Because it was.
Nonetheless, at least one Court is continuing to stick to its guns and find the TCPA unconstitutional as applied to calls made between November, 2015 and July, 2020–and it is a profound act of bravery (and intellectual honesty) in my opinion.
In Bennett v. Veterans Aid PAC, 4:21-cv-00340-ALM, Doc. 55 (E.D. Tex. June 13, 2022)–available here 06-13-22 Memorandum Opinion and Order–the district court dismissed a TCPA suit concluding that the TCPA was unconstitutional during the timeframe the challenged calls were made.
In reaching its ruling, the Bennett court recognized that the weight of authority was against it. Nonetheless, it held that the principles underlying the First Amendment simply would not tolerate enforcement of the statute. In the Court’s view, the TCPA was “unconstitutional from the moment Congress enacted the government-debt exception until the Supreme Court handed down its decision in AAPC.”
So case dismissed.
From my perspective there is no question that Bennett arrives at the correct conclusion. Both law and logic require the finding. And it is unfortunate that other courts are willing to close their eyes to both in order to favor an anti-robocall enactment that doesn’t work anyway.
In the future I hope to report on favorable decisions that correctly apply First Amendment principles to the TCPA and we here at the Troutman Firm are bringing the arguments and motions to make that a reality. That’s not to say that scam robocalls should be permitted–it is to say that the Courts should require Congress to craft a proper restriction that complies with the First Amendment. (And I’ve already shown how that can be done.)
Chat soon TCPAWorld.