TCPA on the Front Line: The Battle for the Future of American Free Speech is Quietly Taking Shape in an Appeal Over “Robocalls”

war battle middlage

Photo by Rene Asmussen on Pexels.com

I’ve said enough on the subject of the watered-down version of strict scrutiny being applied to the Telephone Consumer Protection Act (“TCPA”) and how that might impact the future of free speech in the country. See here and here and here and  here and even here.  And here are the words of appellate counsel challenging the Constitutionality of the TCPA before the Ninth Circuit Court of Appeal in the case of Gallion v. Charter Communications, Inc., case no. 18-55667 (9th Cir):

Privacy obviously is an important interest, and there is no question that the government may sometimes restrict speech to protect privacy and tranquility. Even-handed, nondiscriminatory limitations on sound trucks, megaphones, protestors on the doorstep, and even telephone calls thus are upheld where they safeguard privacy in an appropriately tailored manner. But the First Amendment cannot tolerate a speech regulation based loosely on “privacy” if it prefers favored speakers and messages—particularly where, as here, those messages are just as destructive of “privacy” as the messages that are prohibited (or even more so). If the government could constitutionally justify these sorts of content-based speech restrictions based on a purported “compelling” interest in “privacy,” the government would become the arbiter of whether messages are desirable or undesirable to listeners, which would be anathema to the First Amendment.

Plaintiff Steve Gallion brought this putative class action alleging that Defendants Charter Communications, Inc. and Spectrum Management Holding Company, LLC (collectively, “Spectrum”) violated the TCPA’s Section 227(b)(1)(A)(iii) by placing a single call to his cell phone to promote Spectrum services. ER1. Based on this one allegedly unauthorized call, Plaintiff seeks to recover millions of dollars in purported “damages” on behalf of himself and a putative class.

As originally enacted in 1991, the call restrictions at issue here were designed to preserve content neutrality, and this Court twice sustained the statute as imposing a content-neutral and reasonable time, place, and manner restriction. Moser v. FCC, 46 F.3d 970, 973 (9th Cir. 1995); Gomez v. Campbell-Ewald Co., 768 F.3d 871, 876 (9th Cir. 2014), aff’d on unrelated grounds, 136 S. Ct. 663 (2016). Since that time, however, Congress amended the statute to exempt any call that “is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). Courts and the Federal Communications Commission (“FCC”) have also recently clarified that calls made by governmental entities and their private contractors are categorically exempt from the call restrictions. And the FCC has promulgated numerous other content-based exemptions for favored content pursuant to Section 227(b)(2)(C) of the Communications Act, as amended by the TCPA. As the Supreme Court recently clarified in Reed v. Town of Gilbert, such preferences render the call restrictions content-based and subject to strict scrutiny. 135 S. Ct. 2218, 2227-30 (2015). No court of appeals has yet evaluated the constitutionality of the call restrictions in light of these important developments (although the Fourth Circuit has held unconstitutional, under strict scrutiny, an analogous state law statute, Cahaly v. Larosa, 796 F.3d 399, 408 (4th Cir. 2015)).

Under the well-established precedent of both this Court and the Supreme Court, the presumptively unconstitutional, content-based call restrictions do not survive strict scrutiny. In fact, given the extremely demanding standard of review and the complete absence of evidence justifying a selective, discriminatory restriction on speech, it is not a close question. In particular, the district court erred by identifying a new “compelling” interest in privacy sufficient to justify a content-based speech restriction. The district court also applied a watered down version of strict scrutiny that did not properly account for the fact that the statute’s content-based carve-outs render it both fatally underinclusive and overinclusive…

With strict scrutiny correctly applied, the speech restriction does not come close to passing constitutional muster. The interlocutory order of the district court concluding otherwise should be reversed and the case remanded with instructions to enter judgment in Spectrum’s favor.

The above was an excerpt from the Introduction in the Opening Brief of Defendants-Appellants Charter Communications, Inc. and Spectrum Management Holding Company, LLC. Gallion, Dkt. No. 7-1, filed August 30, 2018.

Appellants take noticeable focus on the TCPA’s exemption for government-backed debt. It is that exemption–among others–that makes the TCPA a pernicious content/viewpoint restriction on speech. So isn’t the fix here to merely strike the exemption from the statute? As the U.S. Chamber of Commerce–serving as amicus– explains, of course not:

First, the Supreme Court has ruled that the appropriate remedy for a speech restriction with an impermissible content-based exemption is to set aside the restriction, not to set aside the exemption. For example, in Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), and Carey v. Brown, 447 U.S. 455 (1980), the Supreme Court confronted ordinances that prohibited school picketing (Mosley) and residential picketing (Carey)—each containing a content-based exemption for picketing on la-bor issues. In each case, the Court ruled that the ordinance violated the Constitution. Each time, the Court remedied the violation by invalidating the entire picketing ordinance, not by invalidating just the content-based exemption for labor picketing. See Mosley, 408 U.S. at 102 (invalidating ordinance prohibiting picketing outside schools, not just exemption for labor picketing); Carey, 447 U.S. at 471 (same with respect to picketing outside residences).

Similarly, in Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987), a state applied its general sales tax to magazines, but granted exemptions to religious, trade, professional, and sports magazines. The Supreme Court ruled that this taxing scheme violated the Constitution. The Court resolved the constitutional problem by invalidating the appli-cation of a state’s general sales tax to magazines, not just the content-based tax exemptions for religious, trade, professional, and sports maga-zines. Id. at 234.

These decisions reflect the well-established principle that courts must employ remedies that “create incentives to raise [constitutional] challenges.” Lucia v. SEC, 138 S. Ct. 2044, 2055 n.5 (2018) (punctuation omitted). In a free-speech case, only leveling up—eliminating the re-striction on speech—creates such an incentive. A speaker would have lit-tle incentive to challenge a discriminatory restriction on speech, if the only remedy it could obtain is the expansion of that restriction to cover more speech.

These decisions also reflect the reality that the invalidation of an ex-emption can itself raise new constitutional problems. When a court inval-idates an exemption, it retroactively imposes liability on speakers who reasonably relied on that exemption while it was on the books. Such ret-roactive liability clashes with the principle that the government must give speakers “fair notice” before restricting their speech. FCC v. Fox Tel-evision Stations, Inc., 567 U.S. 239, 253 (2012). Leveling up is thus theonly remedy that solves the constitutional problems created by the defec-tive statute without creating new problems to take their place.

These precedents require invalidation of the ATDS restriction, rather than invalidation of its content-based exemptions. That is the only course that preserves an incentive to raise challenges to content-discriminatory laws such as the TCPA. A litigant such as Charter Communications would have little reason to bring such a challenge, if all it could get is the application of the TCPA to even more callers.

The above was an excerpt from the Brief of Amicus Curiae Chamber of Commerce of the United State of America Supporting Appellants. Gallion, Dkt. No. 12., filed September 6, 2018.

We will be keeping a very close eye on developments in Gallion as the case obviously has bigger dimensions that just those impacting TCPAland.


Categories: Uncategorized

2 replies »

Leave a Reply