August 8, 2020

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August 05, 2020

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Breaking TCPA News: Supreme Court Rules on TCPA–upholds Statute Applying Severance! (Free Speech Disaster?)

Editor’s Note: This is a live feed that I will update repeatedly as I review the decision. Earliest posts at the bottom. A link to the case is at the very bottom of this page. Definitive analysis and additional coverage will follow this week on TCPAWorld.com. Also don’t forget about the big webinar tomorrow breaking down the decision. Thanks for being here folks. More importantly, who won the pool?

8:01: Well folks that is it for now. I need to go speak to reporters for a bit. Will have a definitive analysis up before 11 am–here’s looking at you Katie.

8:00: “Having to tolerate unwanted speech imposes no cognizable constitutional injury on anyone; it is life under the First Amendment, which is almost always invoked to protect speech some would rather not hear.”

7:57:  Finally, at page 48 of 49 in a free speech case, we get a reminder that the First Amendment prevents restrictions on speech: “The First Amendment isn’t so neutral. It pushes, always, in one direction: against governmental restrictions on speech. Yet, somehow, in the name of vindicating the First Amendment, our remedial course today leads to the unlikely result that not a single person will be allowed to speak more freely and, instead, more speech will be banned.” Thank you Justice Thomas. These few sentences should have been dispositive in my opinion.

7:55: Sorry to my friends in ARM and collectors: “Year after year, the Federal Trade Commission receives more complaints about the debt collection industry than any other.” So comments Justice Thomas.

7:53: Justice Thomas is fantastic, he picks up what no one else on the Court mentions– that things have changed: “New weapons in the fight against robocallers have emerged, too—including tools that allow consumers to more easily screen and block unwanted calls. Perhaps in recognition of these changes, Congress relaxed the ban on cellphone robocallers in 2015.”

7:48: From Breyer’s dissent: “From a democratic perspective, however, it is equally important that courts not use the First Amendment in a way that would threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as result of that public discourse.” Interesting. So it is anti-democratic to allow minorities interests to use the First Amendment to undo the will of the majority–but isn’t that the very concept behind the protections of the Bill of Rights? To protect the interests of the minority from the potential tyranny of the majority? I need to brush off my Federalists Papers.

7:46: From Breyer’s dissent: “For our government to remain a democratic republic, the people must be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences.” Agreed, which is why the TCPA should be struck down, no?

7:44: Remarkably so three Justices found that the debt-collection exemption was not unconstitutional to begin with. Reviewing that portion of the opinion now.

7:43: On to the concurring opinion. J. Sotomayor really did not like the exemption at all. Found it failed even lower scrutiny.

7:40: Pretty weak response to Plaintiff’s argument that folks seeking to challenge a law as unconstitutional will have less incentive to do so if they cannot ultimately speak as they desire: “Plaintiffs suggest that parties will not have incentive to sue if the cure for challenging an unconstitutional exception to a speech restriction is to eliminate the exception and extend the restriction. But many individuals and organizations often have incentive to challenge unequal treatment of speech, especially when a competitor is regulated less heavily.” I mean you’re depriving Americans of the right to speak and limiting redress by the Court’s but that is ok because some people will want to prevent their rivals from speaking? Wow.

7:38: The Opinion’s continuous reference to this First Amendment case–which is supposed to look at the impact of a law on speech–as an “equal treatment” case will definitely be the most enduring part of this opinion. It really tips the scales toward severence wherever possible in First Amendment cases and suggests that the Government can regulate our speech very broadly and extensively–just evenly. I don’t like this at all.

7:37: Side note: the majority opinion is written with such respect for the dissents and concurring opinions. Really a stark departure from some of the rhetoric we’ve seen used recently. I wonder if J. Kavanaugh is trying to strike a more civil tone for the court intentionally.

7:35: So the Supreme Court has done what it has never done before: expanded a statute to cover more speech. Remarkable.

7:35: Wow is this language broad: “The implicit premise of that argument is that extending the robocall restriction to debt-collection robocalls would be unconstitutional. But that is wrong. A generally applicable robocall restriction would be permissible under the First Amendment.”

7:32: Interesting. SCOTUS notes the severability clause was in the Communications Act, not the TCPA itself, and was written decades ago. Yet the Court still holds it must be applied according to its terms.

7:28: “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.” The reference to “gotcha” games in an opinion upholding the ultimate “gotcha” statute– fate is not without a sense of humor.

7:27: Footnote 7 does not seem to line up with the rest of the opinion/briefs/argument. It suggests the inquiry was on whether to invalidate other parts of the Bi-Partisan Balanced Budget Act of 2015 and not the TCPA. Weird.

7:25: SCOTUS traces severance back to Marbury v Madison. Any time you get a citation to M v M you know you’re on solid footing.

7:22: “The continuing robocall restriction proscribes tens of millions of
would-be robocalls that would otherwise occur every day.” Amici briefs on the FCC’s default call blocking rules could have been helpful it seems. SCOTUS was undeniably focused on the impact of the TCPA on preventing unwanted calls–even if that is a false narrative.

7:20: And here’s where the Plaintiff’s focus on the government-backed debt exemption (as opposed to the myriad other content-specific exemptions in the statute) cost us: “This is not a case where a restriction on speech is littered with exceptions that substantially negate the restriction.” Sigh.

7:18: Footnote 5 is incredibly interesting. Justice Breyer would have overturned SCOTUS’ entire First Amendment analysis precedent.

7:17: The Plaintiff’s bar is going to have a field day with this opinion. Definitely would have been better for TCPAWorld if this review had never taken place. A lot of loose language here. And conflating ATDS calls with robocalls: ugh.

7:15: Notice Reed’s reference to the “law” being subject to strict scrutiny. Yet here scrutiny was applied to the exemption to uphold the law. Seems to me to be the wrong result and driven largely by the procedural posture.

7:14: Pretty apparent reading this that SOCTUS was chiefly/only concerned with the government-backed debt exemption, which was reviewed on the Government’s petition. “In short, the robocall restriction with the government debt exception is content-based. Under the Court’s precedents, a “law that is content based” is “subject to strict scrutiny.” Reed, 576 U. S., at 165. The Government concedes
that it cannot satisfy strict scrutiny to justify the government-debt exception. We agree.”

7:12: A robocall that says, “Please pay your government debt” is legal. A robocall that says, “Please donate to our political campaign” is illegal. That is about as content-based as it gets.

7:09: Oh wow. At footnote 1 SCOTUS holds the TCPA does not apply to government. That’s a big ruling with Broadnet under reconsideration.

7:07: “As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.” SCOTUS has collapsed First Amendment protection into Equal Protection. Weird.

7:06:  Here’s how it starts: not a good look: Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.

7:05: What a mess. KAVANAUGH, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.

7:04: J. Kavanaugh wrote the majority–more like a plurality–opinion. Several pieces to this. Will digest and report. Bottome line: TCPA limps along.

7:03: Bit split here. JUSTICE BREYER, joined by JUSTICE GINSBURG and JUSTICE KAGAN would have upheld the exemption.

7:00: The ruling is out. Reading as fast as I can.

Opinion can be obtained her: https://www.supremecourt.gov/opinions/19pdf/19-631_2d93.pdf

 

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 188

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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