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We reported last week that the ACLU has joined the fray over the TCPAs constitutionality following AAPC. (We have a BIG podcast interview with those guys scheduled for tomorrow BTW.)

Well three more heavy-hitting briefs were just filed yesterday including one by FACEBOOK yes, that Facebookthat casts a whole new light on this thing.

Here are a few pieces of Facebooks introduction:

In AAPC, a splintered Supreme Court majority held that the TCPAs differential treatment of government-debt-collection speech and other categories of speech was unconstitutional. To fix that problem going forward, the Court invalidated and severed the debt-collection exception to the ATDS restriction, 47 U.S.C. 227(b)(1)(A)(iii). AAPC made clear that the post-severance ATDS restriction would now apply equally to all callers, including those making ATDS calls to collect government-backed debt. Crucially, however, AAPC was a pre-enforcement facial challenge seeking only prospective relief. So the Court did not have to resolveand did not resolvethe effect of its constitutional analysis on calls made when the content-based exception was in effect.

The only way to implement AAPCs equal-treatment mandate is to hold that the ATDS provision cannot impose liability for any ATDS calls made while the government-debt exception was in effect.

Now whats really ground breaking about Facebooks position is this concept that AAPCs specific and critical holding was that the First Amendment is an ironing board. (Remember that big piece I wrote on the subject?)

But enforcing the statute in cases involving calls prior to July 6, 2020 is actually inconsistent with the whole ironing board thing speech is not being flatted out, it remains all wrinkly and unwearable. Specifically the statute is enforceable in an uneven and constitutionally-unaccepted way.

While these arguments permeate the appellees brief already, Facebooks brief really puts a fine point on it: Plaintiffs proposed reading of AAPC really would put the decision at war with itselfexalting a footnote over the central holding of the case itself.

Really, really nice stuff guys. (That Roman Martinez fella is pretty bright.)

Additionally briefs were submitted by ACA, Intl and CUNA that are also outstanding.

You can read all three here:

Having now digested everythingand without the benefit of Plaintiffs reply brief just yetI have to tell you this is going to be a very close call. I love the ACLUs elegant First Amendment framework and Facebooks dont-use-AAPC-against-itself argument is killer.

But will the Sixth Circuit do the right thing? Backing Creasy means wiping out trillions of potential TCPA exposure and allowing four years of potential robocall sins to be wiped away. Then again, not backing Creasy would result in the continued erosion of our cherished First Amendment protections and deprive us even of that crummy ironing board that AAPC gave us. (I mean, I didnt want it before but now that someone is trying to take it away I changed my mind.)

I cant wait to find out how this one resolves. Really interesting stuff.

THIS is why I love the TCPA folks.

More here:
CREASY COMEBACK?: Three More Heavy-Hitting Briefs Prop-Up Constitutionality Battle in the Sixth Circuit - Lexology