United States: 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.


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, Plaintiffs argued. As such, by favoring commercial speech over the noncommercial political speech of Plaintiffs, the prohibition violated the constitutional rights of these political organizations, Plaintiffs claimed.

The district court rejected Plaintiffs' free speech challenge and granted summary judgment in favor of the Government. The district court found that it lacked jurisdiction to consider the exemptions created by the FCC, and thus focused its decision on the 2015 congressional exemption, which exempted from the TCPA calls related to the collection of debts owed to or guaranteed by the federal government. The district court agreed with Plaintiffs that content based speech restrictions are "presumptively unconstitutional," and that the exemption for debt-collection calls did in fact make content-based distinctions. But the exemption nonetheless satisfied strict scrutiny review because the exemption did not hinder the automated call ban from furthering the compelling governmental interest of protecting the privacy interests of consumers. Moreover, the district court disagreed with Plaintiffs' argument that less restrictive alternatives would equally advance the purposes of the automated call ban. Plaintiffs appealed.

The Fourth Circuit Weighs In

The Fourth Circuit vacated and remanded.

The Fourth Circuit agreed with the district court that the debt collection exemption facially distinguished between phone calls on the basis of their content, and was thus a content-based speech restriction. As the district court explained, a private debt collector could make two nearly identical automated calls, with the sole distinction being that the first relates to a loan guaranteed by the federal government, while the second concerns a commercial loan. The first call would satisfy the debt collection exemption. The second would be illegal.

Because the Fourth Circuit found that the exemption was a content-based restriction on speech, the exemption could only pass constitutional muster if it satisfied a strict scrutiny review, which requires the speech restriction to advance a sufficiently important government objective of the "highest order," and to be narrowly tailored to fit that objective. The Fourth Circuit found that the debt collection exemption failed strict scrutiny review because it was "underinclusive"—that is, it covered too little speech—and thus did not serve the compelling governmental interest of protecting privacy in a narrow fashion.

Notwithstanding the constitutionally flawed debt collection exemption, the Fourth Circuit held that the exemption did not invalidate the entirety of the automated call ban, and thus agreed with the Government that the exemption could be severed from the TCPA. As the Fourth Circuit noted, Congress had explicitly mandated that, if a TCPA provision is determined to be constitutionally infirm, severance is the appropriate remedy. The Fourth Circuit thus vacated the district court's award of summary judgment to the Government and directed the severance of the debt collection exemption from the automated call ban.


Although Plaintiffs prevailed in having the district court's order vacated, the TCPA's ban on automated calls was not invalidated. Although the Fourth Circuit declined to extend its invalidation of the debt collection exemption to the TCPA as a whole, the decision is the first to find that the TCPA violates the First Amendment, and potentially opens the door to future First Amendment challenges. The decision thus begs the question: will courts revisit the TCPA's ban on the "freedom to distribute information" lauded by the Supreme Court in Martin? Only time will tell.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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