Political speech is among our most treasured freedoms. As Benjamin Franklin noted, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Indeed, in 281 Care Comm. v. Arneson, the U.S. Court of Appeals for the Eighth Circuit noted the well-settled principle that political speech is “at the core of the protection afforded by the First Amendment.” In recent years, political organizations and others have mounted challenges to the Telephone Consumer Protection Act, and to various state statutes governing so-called robocalls to cellphones, on the basis that certain prohibitions restrict political speech.

In Reed v. Town of Gilbert, the U.S. Supreme Court held in 2015 that the First Amendment “prohibits the enactment of laws abridging the freedom of speech” and deprives the government of the “power to restrict expression because of its message, its ideas, its subject matter or its content.” Whether the TCPA abridges those rights with respect to political speech is being litigated around the country and courts have come to differing conclusions.

The TCPA was enacted in 1991 to address privacy concerns implicated largely by commercial robocalls, which invaded an individual's privacy in his or her residence or otherwise. Congress addressed this privacy concern by making it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to any cellphone, and to make calls with an artificial or prerecorded voice to residential lines. See 47 U.S.C. §227(b)(1)(A)(iii) and (B).

On their face, these provisions were generally held to be content-neutral restrictions on how calls are made. However, in 2015, the statute was amended to allow the use of an ATDS or artificial voice without prior express consent for calls made “to collect a debt owed to or guaranteed by the United States.” Budget Act §301(a)(1) (adding 47 U.S.C. §227(b)(2)(H)). Additionally, in In re Cargo Airline Ass'n Petition for Expedited Declaratory Ruling, Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling, 29 FCC Rcd. 3432 (March 27, 2014), and In re Am. Ass'n of Healthcare Admin. Mgmt., Petition for Expedited Declaratory Ruling, Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling, 30 FCC Rcd. 7961 (July 10, 2015), the Federal Communications Commission created exceptions from the prior express consent requirements for package deliveries and health care-related communications. These revised regulations allowing changes impact the “content-neutral” aspect of the TCPA since certain types of speech more than others have called into question the content neutrality of the TCPA, particularly with respect to political speech.

Recent challenges to the constitutionality of the TCPA have focused on whether the debt collection exemption, and in some cases, the package delivery and health care exemptions, are content-based restrictions requiring analysis using the standard of strict scrutiny. In Gallion v. Charter Commc'ns, the U.S. District Court for the Central District of California reaffirmed that in order to find a statute constitutional under principles of strict scrutiny, the court must find that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.

Gallion and other recent cases such as Brickman v. Facebook; Holt v. Facebook; Mejia v. Time Warner Cable; Greenley v. Laborers' Int'l Union of N. Am. have upheld the TCPA, finding that although it is now a content-based restriction, it survives strict scrutiny review on the basis that it is narrowly tailored to achieve the compelling interest of safeguarding privacy, and there are no less restrictive alternatives that are at least as effective in achieving the legitimate purpose of the TCPA.

These constitutional challenges are not unique to the TCPA. Many states have some version of the TCPA and the constitutionality of those statutes has also been challenged. In several cases, those challenges have been rejected. For example, in Victory Processing v. Fox, the U.S. District Court for the District of Montana upheld a state statute which expressly prohibited political robocalls unless permission of the called party is first obtained by a live operator.

Similarly, in Patriotic Veterans v. Zoeller, the U.S. Court of Appeals for the Seventh Circuit disagreed with the plaintiff's argument that the First Amendment required an exception for political speech. However, several of the state statutes have been held unconstitutional as courts have found that the statutes were content-based and did not survive strict scrutiny.

In Cahaly v. LaRosa, the U.S. Court of Appeals for the Fourth Circuit held that the South Carolina statute governing robocalls was unconstitutional on the basis that the statute is content-based, is therefore subject to strict scrutiny and is both overinclusive and underinclusive. In Gresham v. Rutledge, the U.S. District Court for the Eastern District of Arkansas held that the anti-robocall statute at issue was a restriction on political speech and failed the strict scrutiny test. In addition, in Victory Processing v. Michael, the U.S. District Court for the District of Wyoming found the Wyoming robocall statute unconstitutional on the basis that the statute is content-based, overinclusive, and prohibits political speech while allowing commercial speech under certain circumstances.

This trend of determining whether the TCPA and similar state statutes are content-based restrictions in light of the 2015 amendment and recent FCC exceptions, and whether they can survive strict scrutiny, may continue with a pending appeal in the Fourth Circuit filed by both Democratic and Republican parties and PACs, as well as bipartisan organizations in American Association of Political Consultants, Democratic Party of Oregon, Public Policy Polling, Washington State Democratic Central Committee and Tea Party Forward PAC v. Federal Communications Commission. The fact that the Cahaly case, which held the TCPA-like South Carolina statute unconstitutional, was also in the Fourth Circuit breathes some hope into the arguments regarding the unconstitutionality of the TCPA in the American Ass'n of Political Consultants case.

Because of the 2015 amendment and FCC exemptions, these types of challenges to the TCPA have more teeth. Time will tell whether autodialed political calls to cellphones, including text messages, will be allowed without prior express consent. Given the now-ubiquitous nature of cellphones, it is largely one of the few ways political campaigns can reach their constituents to encourage them to vote, to get involved, or to receive information. As such, any restriction on this most precious of freedoms must be carefully scrutinized to ensure that these restrictions do not run afoul of the First Amendment.

Debra Bernard is a partner in Perkins Coie's commercial litigation practice. She represents clients in class action defense of claims under the Illinois Biometric Information Privacy Act, the Telephone Consumer Protection Act, and other consumer, commercial litigation and privacy claims.