Charter Communications Inc. and Facebook Inc. are set to argue a federal robocall law violates the First Amendment’s free-speech guarantee.

The U.S. Court of Appeals for the Ninth Circuit March 11 will hear oral argument in separate cases challenging the Telephone Consumer Protection Act, which restricts the use of autodialers to make telemarketing calls.

The Ninth Circuit may choose to strike down the entire law, or just an amendment to the autodialer restriction that was added in 2015. Under the statute, first enacted in 1991, consumers may sue for robocalls and collect up to $1,500 per call or text.

If the TCPA is struck down as unconstitutional, “it would seem to be game over with respect to any lawsuit or enforcement action brought on the basis of that law,” Artin Betpera, a partner at Womble Bond Dickson whose practice focuses on the law, said.

Charter has been hit with 19 TCPA lawsuits since January 2018, Bloomberg Law data show. Facebook faces two other TCPA suits in the Ninth Circuit, which are on hold pending decisions in the two cases.

The Ninth Circuit and several federal district courts have previously dismissed First Amendment challenges to the robocall law. But the appeals court’s tendency to issue rulings protective of the First Amendment “could make for a surprising outcome,” Betpera said.

Charter has asked the Ninth Circuit to decide whether the TCPA runs afoul of the First Amendment by restricting calls and messages based on their content. The telecom company is facing ongoing claims that it violated the law by calling a consumer without his consent.

Facebook, defending a lower court’s dismissal of claims against it for sending automated login notification texts, says the Ninth Circuit can affirm the decision on the ground that the TCPA is unconstitutional.

Some attorneys say the Ninth Circuit is more likely not to rule that the law runs afoul of the First Amendment.

The First Amendment argument has been “raised and rejected time and time again and we don’t expect this time to be any different,” Sergei Lemberg, counsel for the man who brought the claims against Facebook and managing attorney at Lemberg Law LLC, said.

Charter’s Challenge

Charter is appealing a district court’s denial of its motion for judgment in an ongoing TCPA case brought by plaintiff Steve Gallion. The U.S. District Court for the Central District of California rejected Charter’s argument that the statute restricts free speech based on content by exempting government-favored messages from liability.

Charter is challenging a 2015 amendment that exempts calls made to collect government debt. It’s also challenging provisions that exempt government-authorized messages and that allow the Federal Communications Commission to create additional exemptions.

“The FCC has used that delegation to establish a plethora of such content-based exemptions for favored messages, including for package-delivery notifications, calls relating to banking transfers, and healthcare-related calls,” Charter argued in a brief to the Ninth Circuit. The exemptions show that the law’s call restrictions are content-based and subject to strict scrutiny, it said.

Courts use strict scrutiny, the most rigid standard of judicial review, to determine if an action or law violates constitutional rights.

Content-based laws may withstand the First Amendment’s strict scrutiny test if they are narrowly tailored to achieve a compelling government interest. The district court had agreed with Charter that strict scrutiny applies, but said the statute passes muster because it serves the compelling interest of protecting residential privacy.

Charter counters that residential privacy isn’t sufficiently compelling to justify call restrictions. “The call restrictions exempt vast amounts of speech that is just as intrusive as (and often more intrusive than) the prohibited speech, fatally undermining the government’s purported privacy interest,” the company said in its brief.

Gallion, in a response brief, said the robocall law is content-neutral because it doesn’t single out particular types of messages based on content. The government-debt exemption is based on the relationship between the caller and the recipient, Gallion said. Even if the restrictions are content-based, the law would still satisfy strict scrutiny because protecting privacy is a compelling government interest and the law is narrowly tailored to serve that interest, Gallion said in his brief.

“The TCPA serves an essential purpose, and without this statute, the dam which holds back the flood of intrusive calls will burst,” Gallion said.

Facebook’s Case

The Ninth Circuit will also hear Noah Duguid’s appeal of a decision by the U.S. District Court for the Northern District of California. The lower court dismissed Duguid’s TCPA claims for failure to show Facebook used an autodialer to send texts.

Facebook has told the appellate court that it should affirm the district court’s ruling.

The call restrictions provision is unconstitutional because it “draws distinctions on the basis of content,” and it can’t survive strict scrutiny because “its sweeping proscription on an entire channel of speech is far from the least restrictive means of furthering the government’s purported interest in residential privacy,” Facebook said in its brief.

Decisions in both cases will allow two other pending robocall cases against Facebook to proceed. The Ninth Circuit placed Brickman v. Facebook, a lawsuit accusing Facebook of sending thousands of birthday announcement texts, and Holt v. Facebook, a suit alleging the network sent texts encouraging users to post status updates, on hold until Gallion and Duguid are resolved.

The Northern District of California court in Brickman and Holt had upheld the TCPA under strict scrutiny, notwithstanding the government-debt exemption.

Latham & Watkins LLP is representing Charter and Facebook. Law Offices of Todd Friedman PC is representing Gallion.

The cases are Gallion v. Charter Commc’ns Inc., 9th Cir., No. 18-55667, argument scheduled 3/11/19; Duguid v. Facebook Inc., 9th Cir., No. 17-15320, argument scheduled 3/11/19.