In an opinion Wednesday in a case under the TCPA, a law that (among other things) bars calls without consent to cell phones via automatic dealings systems, Judge Oeken rejected the defendant’s argument that, by exempting government debt collection calls from the ban, the law is a form of speech discrimination that violates the First Amendment.
Judge Oekten found that, while the law “imposes a content-based restriction on speech” and thereby merits “strict scrutiny,” the law was nonetheless justified under that standard:
"Congress . . . carefully targeted the calls most directly raising its concerns about invasion of privacy, while also furthering its interest in collecting federal government debts. [The defendant] argues that by excluding calls made for the purpose of collecting government debts, the provision is fatally underinclusive. However, the Supreme Court has made clear that “the First Amendment imposes no freestanding ‘underinclusiveness limitation.’” At most, an underinclusive law may raise a “red flag” by “rais[ing] ‘doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.’”
Here, the government debt carve-out is a narrow exception from liability in furtherance of a compelling interest . . . . Indeed, the statute expressly authorizes the FCC to further “restrict or limit the number and duration of calls made . . . to collect a debt owed to or guaranteed by the United States.” And . . . “[t]he government debt exception would likewise be limited by the fact that such calls would only be made to those who owe a debt to the federal government.” This narrow exception, and the provision as a whole, are well-designed to further the interests that Congress sought to pursue with the TCPA."