Now we’re talking!
As I’ve written on multiple occasions, the Telephone Consumer Protection Act (“TCPA”) is the broadest restriction on constitutionally protected speech in our nation’s history. Worse still, the statute is content and viewpoint specific–applying with unequal force depending on the intent and identity of the speaker–and risks chilling lawful speech owing to its intolerably vague terms. Although numerous district courts have now recognized the need to apply strict scrutiny to the statute, each has (rather remarkably) found that the TCPA is “narrowly tailored” to a compelling governmental interest. I have opined that the watered-down version of strict scrutiny being applied to the TCPA threatens to undermine our front-line protection of fundamental free speech rights, but that’s not the point of this article.
Rather, this article is about how to leverage pending First Amendment challenges that are now working their way through the Ninth Circuit Court of Appeals–yes that Ninth Circuit Court of Appeals--to obtain stays of TCPA cases. Sound fun?
In Meza v. Sirius Xm Radio, Case No.: 17-cv-2252-AJB-JMA, 2018 U.S. Dist. LEXIS 164601 (S.D. Cal. Sept. 25, 2018), Sirius XM–yes that Sirius XM–moved to stay the case pending the outcome of ACA Intl and Marks. While that probably seemed like a good idea at the time, as of last Thursday it ceased being clever. But Siruis also moved to dismiss the case on constitutional grounds. Specifically, Sirius raised an as-applied equal protection challenge to the TCPA since the statute is a content-based restriction on speech that discriminates against non-governmental speech. And that, the Court agreed, was an argument meritorious enough to deserve a stay while the Ninth Circuit looks at the issue.
Not to bore you with the details, here are the details. In 2015 Congress amended the TCPA to allow the government–and only the government and its contractors–to use regulated technology to call folks to collect on government-backed debt without consent. So the government–and only the government–can speak using effective technology without your permission and in a way that regular private individuals can’t. Super dangerous stuff that shouldn’t be tolerated for a second in a free society.
But the courts have been tolerating it, and for years now. As Meza lays out, multiple district courts have applied strict scrutiny–which is supposed to be really strict and protect Americans when their fundamental freedoms are in jeopardy of being taken away–to the TCPA and found that the statute is perfectly ok because, I mean, no one likes unwanted calls to their cell phones. Am I right?
The Hon. Anthony J. Battaglia is not so sure. After recognizing the need to apply strict scrutiny to the statute, he analyzed–apparently without invitation from the parties–the landscape of pending First Amendment challenges within the Ninth Circuit and recognized that there is at least one pending appeal on the issue. See Meza at *12 recognizing interlocutory...
