Respondents Argue TCPA Limits First Amendment Rights and Should Be Struck Down

The Telephone Consumer Protection Act (TCPA) bans certain automatic phone texts or calls, specifically for cell phones. The American Association of Political Consultants argues in a brief filed on March 25th that the Act is a violation of First Amendment rights. “This Court should invalidate the cell phone-call ban and let Congress, the FCC, and the private sector address the challenges posed by automated calls in ways consistent with the Constitution,” argues the brief.

The counsel for the American Association of Political Consultants, Inc., is Latham & Williams. Petitioners, Attorney General Wiliam Barr, and the Federal Communications Commission are represented by the Solicitor General, Noel J. Francisco.

The TCPA imposes liability up to $1,500 for a call or text message from an automatic telephone dialing system or pre-recorded message sent without prior consent, however, this rule is “subject to a host of exceptions,” according to the brief. One of the exemptions is calls from or on behalf of the government to collect debts or spread government-approved messages; this exception began in 2015. They argue that private debt collectors can make automated calls, but encounter financial penalties if the call departs from the topic.

Before the case was brought to the Supreme Court, a North Carolina federal court ruled in favor of the FCC, but the Fourth Circuit Court of Appeals reversed, determining that the statute violates the First Amendment. They decided the restriction on speech from TCPA is content-based and not tailored to a compelling government interest.  According to the Respondent’s brief, the appeals court decided to rewrite the statute to further prohibit speech, striking the government-debt exception but leaving the unconstitutional speech restrictions. It says the statue is ill-tailored to the government’s privacy interest and fails any tests of scrutiny.

“Because the cell phone-call restriction is content and speaker-based, it can survive only by satisfying strict scrutiny,” the brief says. “The Government has wisely abandoned any argument that the restriction meets that test.  And even if the cell phone-call ban were content-neutral—and thus subject only to intermediate scrutiny—it would still violate the First Amendment, because its sweeping restrictions are hopelessly ill-tailored to the Government’s asserted interest in protecting privacy from unwanted communications.”

The American Association of Political Consultants argues that eliminating content-based distinctions, as was done in the Fifth Circuit court, doesn’t address the First Amendment issues and should be invalidated. The case is set for argument on April 22.

CORRECTION: This story has been revised to correct errors in identifying the parties who filed the brief.