When movies, politics, the TCPA, and Article III standing come together, the results are magic. This happened recently in Golan v. Veritas Entertainment, LLC, et al, in which the Eighth Circuit Court of Appeals told us some things about the TCPA and Article III standing, and Mike Huckabee told us about a very special movie. Ron and Dorit Golan were enjoying a peaceful evening at home when they received the following mysterious message on their answering machine (yes, some people still have answering machines, apparently): “Liberty. This is a public survey call. We may call back later.” The Golans, who were on the no-call list, did what any of us would do: they hired legal counsel, sued, and tried to certify a TCPA class.
By way of background, the mysterious patriot on the other end of the line was Governor Mike Huckabee, who had been hired as a “celebrity” voice (never a good sign when the Eighth Circuit puts the word “celebrity” in quotes) by a marketing company that had been hired by a distribution company to plug some movie entitled “Last Ounce of Courage.” Had the unfortunate Golans hazarded to answer their phone, they would have heard the following message in Mike Huckabee’s dulcet tones:
Hello. This is Governor Mike Huckabee, with a 45-second survey. Do you believe in American freedom and liberty? Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values? I am an enthusiastic supporter of a new movie called Last Ounce of Courage. It is a film about faith, freedom, and taking a stand for American values. May I tell you more about why I recommend that you . . . . see the movie Last Ounce of Courage?
If the listener answered in the affirmative, Mr. Huckabee’s recorded voice would go on to tell them more about this exciting new film, in equally patriotic terms. I’d share more, but you get the idea. Approximately 4 million such calls were made, and about a million live responses were recorded. Of course, the Golans sued Mr. Huckabee and everyone involved.
The District Court, however, dismissed the claims for lack of standing due to failure to allege a concrete injury, and to add insult to non-injury held that the Golans were atypical class reps because they only got the spooky “Liberty” answering machine version of the message rather than the full selljob. The Eighth Circuit reversed, with little discussion, concluding that the Golans had indeed alleged sufficient Article III standing by alleging an injury under the TCPA, seemingly placing the Eighth Circuit on the same side of the ledger as the Ninth Circuit in Spokeo. We’ll see if the Supremes agree. The Eighth Circuit also held that the Golans’ claims were plenty typical of the class claims because they suffered the same type of injury proscribed by the TCPA: namely having to endure Mike Huckabee selling a B movie to them on their phone.
In addition, the Eighth Circuit held that although the promotion was ostensibly in the guise of a survey, it still violated the TCPA’s prohibition of unsolicited telemarketing because the purpose of the communication – which was the publicize this fine feature film – rather than the form of communication, is dispositive. Interestingly, the communication did not violate the prohibition on unsolicited advertisements as defined by the TCPA because it did not advertise the commercial availability of any property, goods, or services.
We’ll keep an eye on this to see if Spokeo affects this analysis. I’ll also be keeping an eye out for this movie. No one loves freedom, faith, and American values (are there any other kind?) more than me. Pass the popcorn, Mike.