6th Circuit Raises TCPA First Amendment Conflicts
Sixth U.S. Circuit Court of Appeals Judge John Bush repeatedly raised red flags during oral argument Thursday about the different liabilities government and private sector robocallers face under the Telephone Consumer Protection Act and how that seems to run afoul of the First Amendment. He twice said he was "bother[ed]" by what appears to be speakers treated differently due to the content of their speech. It's an appeal of a lower court's tossing TCPA litigation against Realgy Energy on grounds the act was unconstitutional until the Supreme Court severed the government-debt exception from the general robocall ban last year, with severance retroactive to 2015 (see 2102020068).
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DOJ lawyer Lindsey Powell, representing the intervenor U.S., said the government debt exception found to be unconstitutional "never took effect" and that's enough to confirm Realgy's conduct was unlawful. SCOTUS made clear that an unconstitutional provision is never part of a law because the Constitution automatically displaces a conflicting statutory provision the minute the law is enacted, Powell said. Although the court didn't find it unconstitutional until 2020, when it did make that finding, that means it never took effect and the remainder was valid the entire time, so Realgy can be held liable for violations.
Public Justice lawyer Ellen Noble, representing the class-action plaintiff-appellants suing Realgy, said the idea of differential treatment of types of robocallers doesn't stand because government robocallers had lacked notice their conduct was unlawful. The disparate treatment isn't based on the content of speech, but on the fact the private sector callers had fair notice of the law while government debt collectors lacked it, she said.
Judicial decisions applying retroactively is established legal principle, Noble said. She said SCOTUS precedent confirms the robocall holding was retroactively valid and shows that when an unconditional amendment is grafted onto a valid statute, that amendment is void, but it doesn't reverse or negate the valid statute. She said Justice Brett Kavanaugh's footnote in Barr on the government-debt exception was specific in how the decision didn't negate liability of robocallers covered by the robocall restriction 2015-2020.
Ryan Watstein of Kabat Chapman, outside counsel for Realgy, said plaintiff-appellants argue government can enact content discriminatory speech regimes for years, and once SCOTUS fixes the issue by severance, it still gets a content discrimination regime without consequences.
Bush said the hurdle to Realgy's position is private debt collectors never had any sense from Congress they were exempt, while government debt collectors did. That exemption was found invalid, but "they have a little bit stronger leg to stand on" on fair notice that Realgy's robocalling was illegal, the judge said. Watstein said Realgy's position is that it didn't violate the statute and if the case is sent back to the District Court, that court ultimately will find no liability. He said if the court concludes severance is retroactive, it would go beyond what Congress could do. He said Kavanaugh'd footnote is "unpersuasive" and didn't reflect the majority view.
Sixth Circuit Judge Julia Smith Gibbons and Watstein disagreed on the applicability of SCOTUS' 1972 Grayned decision, which Watstein said was controlling authority. Gibbons said it's immaterial since it's about the entirety of an ordinance, not the severability of a component.
Also hearing the case was Judge Jane Branstetter Stranch.