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Being a federal judge is a tough job.

You have to clean up all the screwed up things Congress does. And sometimesand this is even worseyou have to clean up all the screwed up things state legislatures do.

Tall task.

Take the Florida Mini-TCPA, for instance. This thing is plainly unconstitutionaland for a number of reasons. Although it is a restriction on speech it is impossible to know what it applies towhats an autodialer? whats a sales call? who is exempt? I dare you to answer those questions in plain Englishso it is void for vagueness. It is also plainly a contents-specific speech-control paradigm that violates the First Amendment.

The good folks at Subway Franchise Advertising Fund took the first crack at raising these arguments recently and they didnt win. But thats ok. It takes a very brave judge to strike down a statute on constitutional grounds and many ties the federal bench needs several exposures to an argument before it sticks. So I am grateful that SFAF took a shot here, although there is one tweak needed (badly) to their argument.

The case at issue isTurizo v. SFAF. I can send you a copy if you want to read it.

So lets start with the bad argument. SFAF argued that only systems that meet theFacebookdefinition of ATDS can be an autodialer under the Florida statute.

That argument is how can I put this gently? ridiculously bad (at least standing alone).

The TCPA defines ATDS to include an ROSNG. The Florida autodialer definition does not. SoFacebooksrequirement of ROSNG usage is entirely unrelated to Floridas definition. So thats just a terrible argument.

In fairness, however, SFAF likely brought the argument primarily to tether its void for vagueness argument. SFAF pivoted and argued, in essence, if the FTSA isnt coextensive with the TCPA then the FTSAs autodialer definition is meaningless and should be struck down. The second part of that sentence is correctthe FTSAs autodialer definitionismeaninglessbut there was no reason (IMO) to pin that reality toFacebook.

In other words, by leading with a weak FTSA = TCPA argument to frame out the void for vagueness pitch. I think SFAF simply shot itself in the foot. BUT they still did a nice job of raising void for vagueness in the first instance. And I want to see more of that from others.

SFAF also raisedwellthe broader First Amendment implications of the FTSA through the lens ofReedandAAPC.And I LOVE the way theTurizocourt framed the issue directly doesReedandAAPC(on the one hand) crush and destroy the oldCentral Hudsontest?

That is the correct question. The correct answer is YES, where the restriction is content specific and no where the restriction is content neutral.

TheTurizocourt didnt quite get there not sure SFAF gave the answer as crisply as I just did and concluded that because neitherReednorAAPCdealt with commercial speech it was impossible to say, for sure, whether theCentral Hudsontest had been abrogated (but it has been.)

Plus theTurizocourt had an easy way to bail itself out the Eleventh Circuit has continued applying Central Hudson post-Reed. SoTurizowent ahead and adopted the old CH test, notwithstanding the fact that the Eleventh Circuits decision was totally unrelated.

Bottom line: SFAF took a first brave step in challenging the FTSAs constitutionality. It wasnt perfectthey also bloated it up with junky preemption and dormant commerce clause arguments that were going nowherebut they tried. And I give them credit for it.

But the FTSAisdoomed. It simply will not stand the test of time because it IS unconstitutional. It will take a few knocks on the door, but eventually the First Amendment will be answered.

Read this article:
Litigation Starting Against Stat's TCPA's - The National Law Review