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...
