The Telephone Consumer Protection Act (TCPA) imposes liability for communicating certain messages in certain kinds of ways to certain groups of people. Not surprisingly, since its first enactment, the TCPA has been challenged as an infringement of the First Amendment right to freedom of speech. Early decisions upheld the statute as a permissible restriction on commercial speech. E.g., Moser v. F.C.C., 46 F.3d 970 (9th Cir. 1995). But the FCC’s 2015 declaratory order, which purports to expand the scope of TCPA liability (see our report on the FCC’s ruling), is currently under review before the D.C. Circuit, in part because it appears to violate the First Amendment. See ACA Int’l v. FCC, No. 15-1211, Pet’rs’ Joint Br. at 25-29, 46-51 (D.C. Cir. Feb. 24, 2016).

But it is not just businesses challenging the TCPA and the FCC’s 2015 order. A bipartisan group of nonprofits recently filed suit seeking a declaration that the TCPA and its implementing regulations infringed upon their rights to discuss “political or governmental issues” with members of the public. See Am. Ass’n of Political Consultants, Inc. v. Lynch, No. 16-0252 (E.D.N.C. filed May 12, 2016). The complaint makes a number of interesting points.

As an initial matter, the complaint makes clear that the First Amendment requires courts to subject any content-based statute or regulation restricting speech to strict scrutiny—i.e., requiring proof that the restriction is narrowly tailored to serve a compelling government interest and is the least restrictive means of advancing that interest. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). If a law that restricts political speech does not “avoid unnecessary abridgement” of First Amendment rights, it cannot survive this “rigorous” review. McCutcheon v. Fed. Election Comm’n, 134 S.Ct. 1434, 1446 (2014).

The American Association plaintiffs contend that the TCPA’s “cell phone call ban” (which is how they describe the provision at issue) imposes an impermissible content-based restriction on speech because the TCPA (as interpreted by the FCC) restricts political speech while exempting six categories of autodialed and prerecorded calls to cell phones: (1) a wireless carrier’s calls to its customers; (2) package delivery text messages to the recipient’s wireless number; (3) non-telemarketing calls to wireless numbers that rely on a representation from an intermediary that they have obtained the recipient’s consent; (4) healthcare calls for which there is exigency and that have a medical treatment purpose; (5) calls regarding bank transactions and events that suggest a risk of fraud or identity theft; and (6) calls made solely to collect a debt owed to or guaranteed by the United States. The plaintiffs argue that the TCPA flunks strict scrutiny because there “is no relation between any legitimate government purpose behind the cell phone ban and the speech banned, regulated, or allowed by it” and, because the law arbitrarily exempts certain speech, it “is underinclusive and thus not narrowly tailored.”

The American Association complaint seemingly uses the Fourth Circuit’s decision in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015), as a guide. Before that decision, many courts upheld the TCPA under the First Amendment as a “content-neutral time, place, and manner restriction” that is “narrowly tailored to serve a significant governmental interest” and that “leave[s] open ample alternative channels for communication.” E.g., Moser, 46 F.3d at 974-75. However, in Cahaly, the appeals court struck down a South Carolina criminal statute under a strict scrutiny analysis that placed a blanket prohibition on unsolicited autodialed calls with a recorded message to consumer telephones but exempted calls “primarily connected with an existing debt or contract, payment or performance of which has not been completed at the time of the call.” S.C. Code Ann. § 16-17-466(B)(2).

The Fourth Circuit held that the statute was content-based because it made “facial content distinctions” as it applied to “calls with a consumer or political message but does not reach calls made for any other purpose.” Applying the strict-scrutiny standard, the court said—assuming the state’s asserted governmental interest to protect residential privacy from unwanted autodialed calls is compelling—that the statute is not narrowly tailored to serve that interest given the plausible less restrictive alternatives (e.g., “time-of-day limitations, mandatory disclosure of the caller's identity, or do-not-call lists”). The court also found that the statute was “underinclusive” since it “restricts two types of robocalls—political and consumer—but permits ‘unlimited proliferation’ of all other types.” Cahaly, 796 F.3d at 405-06.

The Fourth Circuit’s Cahaly decision invalidating the South Carolina mini-TCPA has obvious parallels to the federal TCPA. We are therefore watching American Association closely. Stay tuned for future developments.