The precise vehicle for the appeal is a cert. petition filed by the United States Attorney General taking issue with a Fourth Circuit Court of Appeals decision determining that the TCPA's government-backed debt exemption – added to the statute in 2015 – fails strict scrutiny. In the government's view, the Appellate Court got it wrong and the First Amendment simply does not apply to the government – meaning that the government can reserve to itself the sole right to use a medium of speech and deny that medium to private speakers. Talk about scary.
Raising the stakes even higher, the appeal will also determine whether the proper remedy for an unconstitutional restriction on speech that contains content-specific exemptions is to strike down the restriction entirely (nod your heads please) or merely to analyze the exemption under strict scrutiny and sever it from the statute if it does not advance a compelling interest (make frowning faces). That the severance approach is wrong should be self-evident since severing an exemption expands the restriction on speech by judicial fiat – and that is a terrible idea.
Therefore, the fate of the free world hangs in the balance here – either the government is allowed to reserve to itself the most effective means of communication, or the federal response to Robocalls (the TCPA) is unconstitutional. Neither outcome is particularly attractive (although the TCPA simply does not prevent Robocalls anyway). Which would you rather have? Security against Robocalls? Or the freedom to speak? You can only have one or the other. How fun.
From a practical perspective, does the fact that the Supreme Court granted cert. here mean that the TCPA's days are numbered? We will answer that question and many others in the days to come. Pay close attention to TCPAWorld.com over the next few weeks as we break this thing down from all angles.
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