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Volume XII, Number 23

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TCPAWORLD After Dark: The Government Continues to Attack Free Speech And I’m Getting Depressed

Well, its Friday night. And you know what that means…

I’m reading legal briefs.

Check out this brief when you have a second. This is the government’s brief explaining to a federal court why its ok for Congress to pass a vague law that (apparently) prevents debt collectors from using mail vendors because… who knows why.

DOJ Brief

This relates back to the old Hunstein case (now vacated).

The Government may be forgiven (by the Czar) for advancing that the Central Hudson intermediate scrutiny test survives AAPC–even though it probably doesn’t.

And I can live with–barely–the government arguing that Hunstein meets the intermediate scrutiny test. Maybe just barely the rule preventing a disclosure of information to a vendor directly advances a substantial governmental interest under CH… but I doubt it.

But where things go way off the free-society rails and deep into dark dark jungle of authoritarian autocracy is when the government argues that Hunstein is consistent with strict scrutiny.

Absolutely not. No way.

The Government argues–presumably with a straight face, but I’m not sure–that Hunstein’s interpretation of the FDCPA survives STRICT SCRUTINY (the highest level of constitutional review) because debt collectors can talk to mail vendors about other stuff… just not debt collecting.

I’m serious:

“The statute leaves debt collectors free to communicate with those third parties in other contexts and for other purposes…”

Wow.

So banning someone from speaking to a specific audience about a specific topic is totally ok in the Government’s view, so long as they can talk about other stuff that’s, you know, not so offensive to the Government.

All right. By that logic a statute that says you can’t discuss communism with a pamphlet publisher would be just fine, so long as you’re allowed to discuss other–less disfavored–topics with the local news rag.

Want to talk college football? Sure. Share your views on the proper guacamole recipe? NO problem. Discuss the preferred form of ordered society? Totally off limits.

I’m sorry folks, but that is just nuts. The essence of the First Amendment–as applied in AAPC–is the equal protection of ideas. To say that a speech restriction is perfectly ok specifically because it is content specific is the ultimate exercise in legal jujitsu.

The statute is unconstitutional precisely because it is content specific–that’s not what saves it from constitutional scrutiny folks.

Plus, the Government argues that speech should be suppressed whenever it might “open the door” to other, less favorable speech:

Allowing debt-collector communications to mail vendors in connection with collecting on a debt could open the door to exactly the sort of privacy disclosures that Congress sought to prevent in enacting Section 1692c(b)—permitting, for example, debt collectors to communicate with mail vendors that employ a debtor’s friends, neighbors, or acquaintances.”

Woah.

So the Government essentially concedes that the speech at issue in the case at bar does not actually cause the “sort of privacy disclosures” Congress actually cared about. But just because it might lead to such problems down the line (presumably in some other context and with conduct engaged in by some other Defendant) the statute must be upheld as applied to this Defendant.

No, no no, a thousand times no. This is the opposite of the way it is supposed to work.

Constitutional speech must not be chilled because it might pave the way for unconstitutional speech by other actors. Indeed, under the doctrine of overbreadth a Defendant (used to be able to and perhaps still) can assert the rights of a hypothetical speaker of constitutional speech to defend its own unconstitutional speech.

So for instance, a lying liar used to be able to avoid the effect of a libel prohibition if the enactment was so broad or vague as to cover truthful speech–even though the Defendant in that hypothetical was not engaging in truthful speech. So critical-it was believed–was the First Amendment and the need to protect free speech that a dyed-in-the-wool fraudster could escape liability so long as a good guy might have been improperly caught in the same trap.

That’s what living in a free society looks like. Clear laws. Minimal restrictions on speech. And only where unconstitutional speech is the target–or a statute is truly narrowly tailored to a compelling governmental interest–can a content-specific enactment be enforced.

Here we have the bizarro world argument asserted by the Government–someone making constitutional speech that causes no harm is subject to a restriction on speech merely because some other bad actor might otherwise be permitted to make unconstitutional speech, or cause harm, without the restriction.

Stated alternatively, the Government asserts that the statute survives strict scrutiny “as applied” to the Defendant in one case, just because the statute might survive such scrutiny as applied to a different Defendant.

This stuff really makes me sad.

I’m a big “free society” guy. And I’m a true believer that freedom doesn’t just come from our men at arms–brave though they are–it also (perhaps mostly) comes from constitutional lawyers and judges doing the right thing to protect our society from potential government encroachment on our liberties. And it takes folks seeing the big picture to make sure we don’t lose our freedoms bit by bit.

Encroachment ALWAYS happens in small steps and is usually enabled by “common sense” needs–like stopping abusive debt collection tactics or unwanted robocalls. No one comes down and says “give me all your freedom.” Rather the government says–“hate xy or z? Well hand me some of your rights and we’ll take care of that for you.”

So when we unthinkingly throw out (or water down) critical constitutional doctrines that protect our freedom and everything that it means to be an American so as to (for instance) stretch the FDCPA to prevent sterile disclosures to a mail vendor…. we are literally engaging in the handiwork of despotism.

That’s just crummy.

Now look, I’m not saying the AUSAs that submitted this brief are bad people. But the big picture is definitely being missed when a brief is submitted that suggests Huntein survives strict scrutiny. It doesn’t. And the government doesn’t have to go that far to defend the statute.

I had SO MUCH respect for the solicitor general’s office’s decision to abandon the strict scrutiny angle in defending the TCPA before the Supreme Court in AAPC. I hope the Government re-thinks its position here as well, either in this case or in future litigation.

Upholding Hunstein just isn’t worth stripping down strict scrutiny like this, guys.

It just isn’t.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 338
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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...

213-689-6510
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