Fourth Circuit's Decision Revitalizes First Amendment Challenge To The TCPA

In 1943, the United States Supreme Court considered the constitutionality of an ordinance that prohibited door knocking in Martin v. Struthers, 319 U.S. 141 (1943). The Supreme Court, in its landmark free speech decision, concluded that the ordinance was invalid because it was in conflict with the freedom of speech and press. The Supreme Court's decision was clear: "Freedom to distribute information to every citizen wherever he desires to receives it is so clearly vital to the preservation of a free society that . . . it must be fully preserved."

Forty-eight years later, the Telephone Consumer Protection Act (TCPA) was passed, prohibiting, under certain circumstances, calls to a cell phone using an automatic telephone dialing system (ATDS) or artificial or prerecorded voice without the prior express consent of the called party. The TCPA created expansive restrictions on speech in the country, and has been viewed as contrary to the Supreme Court's instruction in Martin to preserve the freedom to distribute information to every citizen. And the FCC and courts around the country continue to expand the reach of the TCPA's ban on automated calls. Yet, the TCPA has repeatedly survived strict scrutiny review in courts across the country.

On April 24, 2019, the landscape shifted. The Fourth Circuit, in a highly anticipated decision, struck down a 2015 amendment to the TCPA that exempted federal debt-collection automated calls, finding that the exemption was an unconstitutional content-based restriction on speech in violation of the First Amendment. See Am. Ass'n of Political Consultants, Inc. v. FCC, Case No. 18-1588 (4th Cir. Apr. 25, 2019). Although the Fourth Circuit declined to extend its decision to the TCPA as a whole, the decision potentially opens the door to future First Amendment challenges.

Background

Plaintiffs, who were political and polling organizations, brought this case in the Eastern District of North Carolina against the Federal Communications Commission (FCC) and the U.S. Attorney General in 2016. Plaintiffs alleged that certain TCPA exemptions created by the FCC, as well as a 2015 congressional exemption, were content-based restrictions. As such, defendant had the burden of demonstrating that the TCPA's prohibition on calls using an ATDS was narrowly tailored to further a compelling interest, which it is entitled to protect using the least restrictive means available. But the TCPA's prohibition did not satisfy strict scrutiny...