Society’s Acceptance of the TCPA Reveals its Waning Appreciation for the Freedom of Speech

Last Friday marked the 73rd anniversary of the oral argument in the U.S. Supreme Court’s landmark free speech decision in Martin v. City of Struthers. In that case our highest court held that an ordinance preventing people from knocking on one another’s doors to distribute unsolicited pamphlets and circulars was unconstitutional—an impermissible prior restraint on free speech that threatened free society itself.

A government—it was held—cannot substitute its judgment for that of its citizenry and issue a wholesale bar on the delivery of constitutionally protected messages. Yes, some folks might be annoyed by having to come to the door on a Sunday morning to greet a neighbor sharing an unwelcome message of faith, or an unsympathetic political position, but that nuisance must be borne—hopefully as a badge of honor—by all those who wish to live in freedom. As the great Justice Black wrote at the time, “[f]reedom to distribute information to every citizen wherever he desires to receive it” is “vital to the preservation of a free society.” Martin v. City of Struthers, 319 US 141 (1943.) Indeed, the “stringent prohibition” against disturbing to one’s neighbors unsolicited pamphlets and circulars was held to “serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”

Flash forward to today. Freedom of speech no longer concerns us, at least not as compared to the freedom not to be bothered—even if ever-so-slightly. Indeed, we wish to be free from anything we do not admire, or agree with. Free to think only what we want to think and to be free of any who would disagree with us or share an idea we do not immediately relate to. Even the advertisements we view and the news articles we peruse must be tailored to our preferences, as gleaned by the learning computer programs that we happily allow to monitor our every page click, to assure that we are never bothered with something we might not want to see.

Those of us that exalt freedom of self over freedom of expression have the Telephone Consumer Protection Act (“TCPA”) to protect and preserve our most cherished freedom: the freedom to be left alone. Indeed just yesterday the FCC issued an Enforcement Advisory barring political activists from contacting constituents before their words have ever been formed and most observers—if there are any—likely think it’s a good thing. Fewer “robocalls” to bother us.

We know—if we ever paused to think about it—that the TCPA, as applied by the FCC, is the single most expansive restriction on Constitutionally-protected speech that has ever been passed in this country’s history. Indeed, it is the death of free speech in the modern age. For decades America’s Supreme Court has prudently guarded our freedom of expression, holding it sacred against all forms of restrictive legislation. Even an otherwise righteous law might be struck down if it even risked “chilling” protected speech. But all of that is out the window now, it seems. For here we have the TCPA—itself a millennial born in 1991—wielded by an FCC that relishes in openly restricting and regulating protected speech.

The FCC is not only chilling speech, it is freezing it solid and then smashing it with a sledgehammer. It is applying the TCPA to restrict all speech—from core political speech to innocuous social banter—making use of a person’s cell phone without their express prior permission. It assumes a cell phone user will not want to receive the caller’s message before the words have ever been spoken. It silences the speaker before his message has ever been conveyed. And failing to comply with the statute’s morass of dense and often-times conflicting regulations subjects a speaker to a minimum violation of $500.00 per call.

Yet, as noted above, the TCPA’s reach is terrifying. The FCC’s enforcement advisory yesterday reminded political candidates that they may not make use of their constituent’s cell phones without complying with the TCPA. Yes, even this sort of key, compelling, core, essential political speech is subject to a prior restraint and restriction as to the manner in which it may be made. The FCC—the agency entrusted to assure timely access to wireless carrier services—is shutting down access to the phone lines even for those delivering the most important forms of protected speech unless its regulations are adhered to and obeyed.

Thus, it is the FCC that now tells you what messages you can receive, and which you cannot. How you can speak, and when, and to whom. And if you fail to comply, they can crush you or your institution with massive penalties. Yet this price does not seem so high if it means that political activists won’t eat up your cell phone minutes, does it?

And so it is that the battle over the constitutionality of the TCPA—now being waged before the DC Circuit Court of Appeal—is nothing less than an inter-generational struggle to define (or re-define) what it means to live in a free society. Expression vs. Privacy. The freedom to speak vs. the freedom not to listen. Pick your side. There is no middle ground here.

Then again, the chances are good that I already know what side you’re on. You would never have seen this article—much less made it through it—if Google’s preference-mining computer applications hadn’t decided that you’d likely agree with me.