The Constitutional Dimension: Why the First Amendment May Light the Way to Sensible TCPA Reform

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I spent some time speaking with reporters yesterday about how we can really get to the bottom of the “robocall” epidemic plaguing this country. I focused on the need to better define our terms–so we can identify the real problem without sullying legitimate American businesses with the label of “robocallers” when they’re simply not the ones behind the annoying scam calls everyone wants to prevent.

During the interview I found myself speaking much more about the First Amendment than I expected and I think it is important for TCPAland to understand constitutional framework that serves as a backdrop for all potential regulation of lawful speech. So here you go.

The TCPA Is the Most Expansive Restriction on Free Speech in American History 

We start with a simple but remarkable proposition–the Telephone Consumer Protection Act (at least as interpreted by the FCC and some courts) is unquestionably the single most expansive restriction on constitutionally-protected speech in our nation’s history.  Indeed, nothing else even comes close.

Although the TCPA, as passed, was mindful of Constitutional limitations–targeting only random-fire messages and, thus, leaving ample alternative methods of communication– the FCC and some courts have expanded the reach of the statute to cover all dialers that call from a list. The TCPA thus operates to afford a blanket “no speech” zone around every cell phone in the country, assuring that American phones can only be reached by the most manual of dials unless consent is previously obtained.

And while the ACA Int’l decision did away with the most oppressive elements of the FCC’s 2015 TCPA Omnibus ruling, it did so without a whisper about the very grave Constitutional concerns raised by the FCC’s expansive regulation of lawful speech.

The U.S. Supreme Court Has Long Recognized That Constitutional Speech Cannot be Restrained in the Name of Privacy

Over 75 years ago the U.S. Supreme Court handed down its landmark free speech decision in Martin v. City of Struthers.  In that case our highest court held that an ordinance preventing people from knocking on one another’s doors to distribute unsolicited pamphlets and circulars was unconstitutional—an impermissible prior restraint on free speech that threatened free society itself.

A government—it was held—cannot substitute its judgment for that of its citizenry and issue a wholesale bar on the delivery of constitutionally protected messages.  Yes, some folks might be annoyed by having to come to the door on a Sunday morning to greet a neighbor sharing an unwelcome message of faith, or an unsympathetic political position, but that nuisance must be borne—hopefully as a badge of honor—by all those who wish to live in freedom. As the great Justice Black wrote at the time, “[f]reedom to distribute information to every citizen wherever he desires to receive it” is “vital to the preservation of a free society.” Martin v. City of Struthers, 319 US 141 (1943.) Indeed, the “stringent prohibition” against disturbing to one’s neighbors unsolicited pamphlets and circulars was held to “serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”

Flash forward to today.  Is there any difference between knocking on a door and ringing a phone from a nuisance perspective? Arguably the door knocking is more intrusive than a ring on the phone and certainly more invasive of privacy.

But the TCPA Has Repeatedly Survived Strict Scrutiny–Although it Really Shouldn’t In Most Contexts 

For decades America’s courts have prudently guarded our freedom of expression, holding it sacred against all forms of restrictive legislation. Even an otherwise righteous law might be struck down if it even risked “chilling” protected speech. But all of that is out the window now, it seems.

Numerous district courts have now found that the TCPA is subject to strict scrutiny–the highest level of constitutional review possible. See Brickman v. Facebook, Inc., 230 F. Supp. 3d 1036 (N.D. Cal. 2017); Gallion v. Charter Communs., Inc., 287 F. Supp. 3d 920 (C.D. Cal. 2018). To pass strict scrutiny review the restriction must be “narrowly tailored to be the least-restrictive means available to serve a compelling government interest.” Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. Oct. 28, 2015).

The TCPA has repeatedly been found to meet this “strict scrutiny” test although no one even knows what technology the TCPA applies to. That really should not be happening. There’s no way the TCPA should pass strict scrutiny in most contexts.

First, the statute was designed to fight telemarketing abuses. See King v. Time Warner Cable Inc., 2018 U.S. App. LEXIS 17880 (2nd Cir. June 29, 2018) (TCPA passed “in the interest of reducing the volume of unwanted telemarketing calls”). So to the “compelling government interest” here is the prevention of telemarketing calls. A foriori, to the extent the statute can be read to apply to non-telemarketing calls it is not narrowly tailored.

Even more problematic is the lack of any contours as to what conduct the TCPA actually applies to.  Stated more specifically, what speech does the statute make illegal? The fact that there is no good answer to that question should instantly renders the statute void for vagueness– “such vagueness in statutes and ordinances regulating speech has the [] problem of chilling constitutional speech. See Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1322, 12 L. Ed. 2d 377 (1964).

The TCPA is not only chilling lawful speech, its making it walk through a minefield of hidden explosives.  One caller might step safely and another might be blown to smithereens for the exact same conduct. The natural effect of this terrifying ordeal is that many speakers will stop speaking. This is especially true as failing to comply with the statute’s morass of dense and often-times conflicting regulations subjects a speaker to a minimum violation of $500.00 per call. This is a nuclear winter for free speech.

Yet the courts aren’t protecting us. Strict scrutiny review was supposed to prevent laws like the TCPA from taking root.  People should never be left to guess if speech is lawful or not with a billion dollar bazooka aimed at their heads.  But the brand of “strict scrutiny” being applied to the TCPA looks a lot more like the rational basis test than the rigorous analysis compelled by the First Amendment.

Again, if the statute were applied as written–to apply only to random-fire dialers–the statute is undoubtedly constitutional. First, there would be clarity as to what the statute covers. Second, the statute would only regulate a very limited swatch of conduct, and that which it is most “compelling” for the government to prevent. So the more limited “chilling” effect on lawful speech would be all-the-more profoundly justifiable.  But the impossibly-vague and impossibly-expansive TCPA dragon that the courts are allowing to live and breathe under their aegis today bares no resemblance to the statute Congress passed back in 1991. This shouldn’t be happening, and I shouldn’t be the only one talking about it.

Still, Constitutional Concepts May Light the Way to Less Robocalls for Everyone

The First Amendment is a worthy guide and I suggest we follow where she leads.

Truthful commercial speech by legitimate American businesses is protected by the First Amendment and should not be subject to vague and brutal regulation. Period.

But lies, cheats, and falsehoods are not protected by the First Amendment and the government does have a compelling interest in squelching that stuff. Period.

Since scam calls and spoofing–the real problem–are not protected by the First Amendment the folks choosing to do that stuff might properly see jail time, which would put a stop to the nonsense.

So why not regulate according to these Constitutional dimensions?

Why not find that the use of any dialer to spread lies or falsehoods of any kind is illegal? Wouldn’t that cut down on the true spam “robocalls” we’d all like to see cease? And conversely, why not clarify that lawful, protected and legitimate speech is only unlawful when made through means that may legitimately cause havoc–such as through the use of random dialers.

Yes, modern technology allows lawful speech to made efficiently and effectively but does lawful and honest speech become unprotected merely because there is so much of it?  The answer must surely be “no.” It seems to me, therefore, that the FCC could all but outlaw the “true” bad actors and stay well within Constitutional limits. The net result would be less spam and deceitful calls. Maybe then folks wouldn’t be so afraid to pick up their phones anymore and legitimate businesses wouldn’t have to make so many calls to reach their customers for legitimate purposes. And then the volume of calls overall might deescalate and life in the modern era might seem a bit more bearable.


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