Recently, Federal District Judge Richard G. Stearns handed down an opinion in a commercial speech case, one involving a state ban on debt-collection phone calls made during a state-declared state of emergency (COVID-19 pandemic).
The case is ACA International v. Healey (Dist. Ct., MA, May 6, 2020).
While Judge Stearns issued a temporary restraining order based on First Amendment grounds, he declined the opportunity to invoke the content-discrimination and strict scrutiny analysis set out in Reed v. Town of Gilbert (2015). In a footnote, Judge Stearns wrote:
I agree with Chief Judge Saylor’s conclusion in Mass. Ass’n of Private Career Sch. v. Healey, 159 F. Supp. 3d 173, 192 (D. Mass. 2016), that neither Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), nor Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015), “disturb the Court’s longstanding framework for commercial speech under Central Hudson.” To the extent that any argument to the contrary might apply to this decision, I adopt Judge Saylor’s reasoning and that of the other courts on which he relies.
A description of the case, the issues raised, and the ruling in it are set forth below.
Plaintiff ACA International (ACA) seeks a temporary restraining order and preliminary injunction enjoining Maura Healey, the Attorney General of Massachusetts (Attorney General) from enforcing 940 CMR 35.00, “Unfair and Deceptive Debt Collection Practices During the State of Emergency Caused by COVID-19” (the Regulation), issued in her official capacity on March 26, 2020, and made effective the same day. . . .
ACA is a registered Minnesota non-profit trade association with more than 2,300 members who work in the credit-and-collection industry (some within and others outside of Massachusetts), including in their ranks first- party creditors, debt buyers, and collections agencies.1 ACA provides its members products, services, and publications, including educational and compliance-related information. That ACA has standing to litigate this case is not a matter in dispute.
The regulations at issue
The Regulation states that “[t]he purpose of 940 CMR 35.00 is to provide emergency regulations to protect consumers from unfair and deceptive debt collection practices during the State of Emergency declared by the Governor of Massachusetts on March 10, 2020 pursuant to Executive Order No. 591: Declaration of State of Emergency to Respond to COVID-19.” The Regulation prohibits debt collectors from initiating telephone calls to debtors and from initiating a lawsuit to collect a debt.
Section 35.03 of the Regulation, entitled “Prohibitions on Debt Collection Activity with Regard to All Creditors, Including Debt Collectors,” provides that:
“[f]or the ninety (90) days following the effective date of this regulation or until the State of Emergency Period expires, whichever occurs first, it is an unfair or deceptive act or practice for any creditor, including a debt collector, to: (a) initiate, file, or threaten to file any new collection lawsuit; (b) initiate, threaten to initiate, or act upon any legal or equitable remedy for thegarnishment, seizure, attachment, or withholding of wages, earnings, property or funds for the payment of a debt to a creditor; (c) initiate, threaten to initiate, or act upon any legal or equitable remedy for the repossession of any vehicle; (d) apply for, cause to be served, enforce, or threaten to apply for, cause to be served or enforce any capias warrant . . . .
Section 35.04 of the Regulation, entitled “Prohibition on Debt Collection Telephone Calls with Regard to Debt Collectors Only,” provides that:
“[f]or the ninety (90) days following the effective date of this regulation or until the State of Emergency Period expires, whichever occurs first, it shall be an unfair or deceptive act or practice for any debt collector to initiate a communication with any debtor via telephone, either in person or by recorded audio message to the debtor’s residence, cellular telephone, or other telephone number provided by the debtor as his or her personal telephone number, provided that a debt collector shall not be deemed to have initiated a communication with a debtor if the communication by the debt collector is in response to a request made by the debtor for said communication.”
ACA members complain that their only alternative to telephone calls for the foreseeable future is letters, which “rarely yield collection results for a large proportion of the accounts in inventory and are largely used to convey the consumers’ rights under federal and state law.” . . .
ACA’s Complaint asserts the following claims against the Regulation – Count I and II – violations of the First Amendment; Count III – violation of the Massachusetts Anti-Slapp statute; Count IV – infringement of the Massachusetts common-law litigation privilege; Count V – violation of the Due Process Clause of the Fourteenth Amendment; Count VI – denial of Equal Protection; Count VII – violation of the separation of powers under the federal and state constitutions; and Count VIII – unlawful expansion of the Attorney General’s regulatory authority under Chapter 93A.
In his analysis of the issues under consideration, Judge Stearns ruled that it would be improper for a federal court to pass on the state-law issues raised. Then, turning to the First Amendment issues, he declared:
Content-based restrictions on expressive speech in traditional public fora are “presumptively invalid” under the First Amendment, R.A.V. v. City of St. Paul, Minn., (1992), while “time, place, [and/]or manner” restrictions which are content-neutral are, on the other hand, subject to intermediate scrutiny, Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736, 741 (1st Cir. 1995). The test of content-neutrality “is whether government has adopted a regulation of speech because of disagreement with the message it conveys.” . . .
Commercial speech, because it is untethered to the general public interest, is accorded less First Amendment protection than its more exalted cousin. At its fringes, commercial speech that is misleading may be banned altogether. Rocket Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 13-14 (1st Cir. 2013). But the mere fact that speech proposes a commercial transaction does not mean that the First Amendment drops altogether from the picture. A State has no constitutional power to suppress “truthful, nonmisleading commercial messages.” 44 Liquormart, Inc. v. Rhode Island (1996) (plurality opinion).
Employing the three-prong test announced in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n. (1980), Judge Stearns ruled that the Plaintiff’s claims must be sustained on First and Fourteenth Amendment grounds. He also stated:
The best that can be said for the Regulation is that it decreases incrementally the number of times that a phone might ring in a debtor’s home with a wanted or unwanted call from one species of debt collector – although in this day and age of cell phones and caller ID the option of simply not answering the phone or placing it in silent mode is a viable alternative for consumers. I say incrementally because the prior supplanted regulation had already imposed a limit of two calls per week by debt collectors. The Regulation does not insulate a home dweller from debt collection efforts – mortgagors, landlords, and nonprofit entities, among others are excepted from the ban – rather it singles out one group debt collectors and imposes a blanket suppression order on their ability to use what they believe is their most effective means of communication, the telephone.
[T]he court hereby enters a temporary restraining order enjoining the Attorney General from enforcing the provisions of the Regulation that ban telephonic communications initiated by the defined debt collectors with consumers in connection with the payment of a debt that is due and owing (the entirety of 940 CMR 35.04). The court also enjoins the Attorney General from enforcing 940 CMR 35.03 in so far as it bars the defined debt collectors from bringing enforcement actions in the state and federal courts of Massachusetts. This Order is intended to have no impact on any other law or regulation regarding debt collection that is now in force.
- Barr v. American Association of Political Consultants, Inc. (automated-call restriction re US gov. as debt collector)
False information lawsuit against Fox News contested on First Amendment grounds
“I don’t think it’s rhetorical hyperbole to say that an objective assessment of this case demonstrates that this suit cannot proceed in an American court,” — Michael Carvin (counsel for Fox News)
This from First Amendment Watch:
On May 21st, a lawyer for Fox News asked a Seattle judge to throw out a lawsuit accusing the cable network of spreading false information about COVID-19.
The suit, filed in the Superior Court in Washington County of King on April 2nd by the Washington League for Increased Transparency and Ethics (WASHLITE), accuses the cable news network of violating the state’s Consumer Protection Act. According to the complaint, Fox “willfully and maliciously engaged in a campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.”
The complaint singles out Fox News hosts Sean Hannity and Trish Regan, who had repeatedly downplayed the seriousness of COVID-19 in February and March broadcasts.
- Gabe Rottman, “Fox News lawsuit would strip First Amendment protection from cable news and the internet,” Reporters Committee for Freedom of the Press (May 18)
- Jessica Chasmar, “Former Time editor Richard Stengel: ‘First Amendment doesn’t protect false speech about a virus’,” Washington Times (May 22)
Judge rules First Amendment protects middle school student’s drawing
Bruce Vielemetti over at the Milwaukee Journal Sentinel reports that:
A middle school student who helped a friend draw a picture of a cartoon bomb should not have been convicted of making a terrorist threat, an appeals court judge has ruled.
The boy, identified in court records only as A.N.G., was found delinquent on two counts in Waupaca County — disorderly conduct and making a terrorist threat, a felony — as a party to a crime.
This week, Court of Appeals Judge Brian Blanchard ordered both adjudications vacated and the delinquency petition dismissed.
The boy’s “private drawing was not a true threat in the constitutional sense,” Blanchard found, but rather the kind of expression protected by the First Amendment. . . .
Josh Blackman on a new trend: opinions are no longer announced from the bench
Over at The Volokh Conspiracy, Professor Josh Blackman writes:
The Supreme Court has now experimented with broadcasting oral arguments. It was no longer feasible to hold proceedings in the Court. For at least 10 cases, the Justices allowed advocates and Justices to participate remotely. However, during this tumultuous time, the Justices have abandoned entirely another longstanding tradition: announcing opinions from the bench. Generally, the author that writes the majority opinion will give a brief summary, and note any concurrences or dissents. . . .
These moments are powerful in the usually staid Court, and send a message to the public. Often, the oral dissent deviates, however slightly from the written opinion. I understand that these statements are not always vetted by the other members of the dissent. And, at times, ad-libbing can create tensions. Some Justices will even give the press a written copy of their statement; these documents are not for public disclosure. But the Justices want to make sure the media accurately quote them.
Alas, I do not think we will have any audio hand-downs this year. Since the Court went virtual, opinions have been released without any fanfare. The Court simply posted PDFs on SupremeCourt.gov at 10:00 a.m. To be more precise, the Court would post one PDF, and if there was a second case, wait another five minutes before posting the second PDF, and so forth. Even tough the Justices were not actually announcing the opinions from the bench, the Court’s IT staff spaced apart the postings to simulate what a real decision day would feel like. . . .
Upcoming Zoom event with Rodney Smolla
- On June 5 at 6 p.m. ET, Rodney A. Smolla will be hosting a talk on Zoom titled “Confessions of a Free Speech Lawyer” through the Lewes Public Library.
In the personal and frank Confessions of a Free Speech Lawyer, Rodney A. Smolla offers an insider’s view on the violent confrontations in Charlottesville during the “summer of hate.” Blending memoir, courtroom drama, and a consideration of the unhealed wound of racism in our society, he shines a light on the conflict between the value of free speech and the protection of civil rights.
Well before the tiki torches cast their ominous shadows across the nation, the city of Charlottesville sought to relocate the Unite the Right rally; Smolla was approached to represent the alt-right groups. Though he declined, he came to wonder what his history of advocacy had wrought. Feeling unsettlingly complicit, he joined the Charlottesville Task Force, and he realized that the events that transpired there had meaning and resonance far beyond a singular time and place. Why, he wonders, has one of our foundational rights created a land in which such tragic clashes happen all too frequently?
Rodney A. Smolla is Dean and Professor of Law at the Delaware Law School of Widener University and is the author of numerous books, including The Constitution Goes to College, Deliberate Intent, and Jerry Falwell v. Larry Flynt. He is a nationally known scholar and writer and has presented oral argument in state and federal courts across the country. Rodney will be interviewed by Ronald Collins, the former Harold S. Shefelman Scholar at the University of Washington School of Law.
Browseabout Books is selling copies of the book. Call-In orders are accepted daily from 10:00 AM – 4:00 PM at (302) 226-2665 or order books online.
LoMonte on government employees speaking to the news media
- Frank D. LoMonte, “Putting the ‘Public’ Back into Public Employment: A Roadmap for Challenging Prior Restraints That Prohibit Government Employees from Speaking to the News Media,” Kansas Law Review (2019)
Gans on free speech and equality
- “Speech and Its Relationship to Equality: Constitutional Values in the Digital Age” authored by David Gans (Director of CAC’s Human Rights, Civil Rights, and Citizenship Program), explores ideas of equality as a free speech value, how to take account of both speech and equality, as well as guidelines on how social media companies can balance constitutional values.
- David L. Hudson, Jr., “Cyberbullying and Freedom of Speech,” New Mexico Law Review (May 25)
- David L. Hudson, Jr., “Anti-SLAPP Coverage and the First Amendment: Hurdles to Defamation Suits in Political Campaigns,” American University Law Review (May 25)
Scholarly article on disinformation and the First Amendment
- Jill I. Goldenziel & Manal Cheema, “Protecting First Amendment Rights in the Fight Against Disinformation: Lessons Learned from FISA,” Maryland Law Review (2019)
Over at First Amendment Watch they will be posting Part II of my series on Benjamin Bache’s history. Read Part I now.
So to Speak podcast on ‘college social media censorship’
- Ep. 112: “College social media censorship” (May 21)
A new FIRE report finds that 77% of public colleges and universities use a blacklist of secret words to censor comments on their Facebook pages. What’s more, 87% of them block particular users on Facebook or Twitter. How do these blacklists work?
- Zach Greenberg, “SUNY Potsdam’s ‘banned organizations’ list violates the First Amendment,” FIRE (May 26)
- Eugene Volokh, “Ninth Circuit reinstates defamation lawsuit over claim that $750K painting was fake,” The Volokh Conspiracy (May 23)
- Eugene Volokh, “Right of access to court hearings during epidemics,” The Volokh Conspiracy (May 22)
- Adam Steinbaugh, “Why did a Bellevue College administrator censor an art installation memorializing Japanese-American internment camps? Public records suggest a motive,” FIRE (May 19)
2019–2020 SCOTUS term: Free expression & related cases
Opinions or judgments handed down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- United States v. Sineneng-Smith (argued Feb. 25) [soliciting unlawful action/overbreadth]
- Carney v. Adams (TBD) [standing / judicial elections]
- United States Agency for International Development v. Alliance for Open Society International Inc. (May 5) [federal funding/compelled speech]
- Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
- Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]
- Bright v. Thomas
- Kansas v. Boettger
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Austin v. Illinois
- Reisman v. Associated Faculties of the University of Maine
- National Association for Gun Rights, Inc. v. Mangan
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Jarchow v. State Bar of Wisconsin
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Schmitt v. LaRose
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- Mckesson v. Doe
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context)
First Amendment related: Cert. denied
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
Last scheduled FAN