Strict scrutiny just isn’t what it used to be.  For the third time, a district court has applied strict scrutiny in analyzing the Telephone Consumer Protection Act (“TCPA”) and found that the statute restricts no more speech than necessary to further a compelling governmental interest.  This is so although no one really knows what technology the TCPA  applies to and the statute uses a failure to opt-in as a predicate to assume an “unwilling recipient” of the speech.  Each of these realities should be independently fatal to the statute from a Constitutional perspective.  More on that in a second.

The most recent decision was issued by Judge Oetken of the Southern District of New York in the case of Mejia v. Time Warner Cable, Inc., 2017 U.S. Dist. LEXIS 120445 (S.D.N.Y. Aug. 1, 2017).  As with previous decisions issued following the Bi-Partisan Balanced Budget Act amendments to the TCPA, the Court had little trouble determining that the TCPA imposes content-based restrictions on speech.  Specifically, the carve-out for government-backed debt plainly results in the TCPA regulating calls based upon the content of that speech.  Under well-tread Supreme Court authority, such content-based restrictions require the application of strict scrutiny.

The brand of strict scrutiny being applied by the district courts to the TCPA looks a lot more like the rational basis test than the rigorous analysis compelled by the First Amendment, which states that “Congress shall make no law… abridging the freedom of speech.”  Clearly, the TCPA abridges the freedom of speech.  That, the Supreme Court teaches us, is okay for some reason but only if Congress is acting for a compelling reason and regulates no more speech than is absolutely necessary to address that compelling reason.

In approaching the issue in Mejia, the Court first found that Congress has a compelling interest in protecting “the privacy interests of residential telephone subscribers…” because the “State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Mejia, 2017 U.S. Dist. LEXIS 120445, at *46.  Fair enough, although these protections are supposed to assure the sanctity of the home and not the sanctity of the smart phone.

But let’s assume that protecting people’s smart phone usage is a “compelling interest” in the modern age—and why not?— can the TCPA really be considered narrowly tailored to that objective?  According to Mejia, the answer is “yes.”  As the Court summarizes matters: “[i]t imposes liability only on a party using an autodialer or artificial voice to make calls without recipient’s consent…[i]t imposes no restrictions on calls not made using an autodialer or artificial voice, and it allows autodialer or artificial voice calls so long as consent has been secured.” Meijia, 2017 U.S. Dist. LEXIS 120445, at *47.  That all sounds narrowly tailored enough—but only if the state’s “compelling interest” was in preventing automated calls, which is not the same thing as protecting privacy.

The disconnect—the “gap” if you will—is that the TCPA assumes that the speech is unwanted and invasive of privacy merely because the call recipient had not yet invited the call.  But that is not a very fair assumption.  The truth is, we often welcome and enjoy speech that we don’t first invite, so using invitation as a predicate for desire is a pretty shabby excuse for permitting a content-based restriction on speech.

Even more profoundly, some speech we need to hear, whether we invite it or want it or not, and the government should not get to decide what uninvited speech we get and don’t get.  Think about it.  The TCPA regulates technology that allows speakers to reach out to people faster, more directly, and more effectively than via any other method.  The text message is as personal as a tap on the shoulder, and while the government might be forgiven for preventing anyone from laying a finger upon your cell phone, what the government is actually doing is reserving for itself exclusively the right to pester you in that manner.

Getting down to brass tacks, cases such as Mejia pave the way for the government to limit the information you receive to only that which the government wants you to hear.  They allow Congress to pass content-restrictive laws enabling it alone to speak to you in the most effective manner, while depriving all others of the ability to do so.  They do this by assuming you don’t want to hear from anyone else but the government and—even more perniciously—that you don’t need to hear any speech you don’t like; unless it is from the government.

But there’s a whole additional angle here.  No one knows what technology the TCPA actually covers.  The FCC has suggested it covers all calls made from a device containing a computer processor—anything that uses software to dial a number might be an ATDS covered by the statute.  And that “might” is of mighty consequence.  If the phone that a business/school/person/pastor/politician uses to place the “uninvited” call turns out to be an ATDS—something that can only be finally determined as a practical matter in a court of law after the call is made—the resulting violations of the statute could be crippling—up to $1,500.00 per phone call.  So is that business/school/person/pastor/politician really going to risk making perfectly lawful manual calls at the risk of being hauled into court and sued for millions or billions of dollars in statutory damages?  Some might, but many others will not.  Yet our country has long observed the grand precedent that content-based restrictions on speech that are excessively vague and risk “chilling” lawful speech cannot be tolerated.  For the third time now, however, a statute that contains no obvious boundaries and plainly threatens to chill huge amounts of lawful speech has been determined to be a “narrow” restriction on speech necessary to protect your privacy.

It just does not add up.  This is dangerous stuff that should not be tolerated in a free society, not even in small doses.  Strict scrutiny review was supposed to prevent laws like the TCPA from taking root.  For the third time now, however, a district court has rushed to “protect” you from unwanted speech by letting the government assume what you will hear in the first instance and leaving the rest of us to guess if our speech is lawful or not.  This shouldn’t be happening, and I shouldn’t be the only one talking about it.