Government continues to attack freedom of expression
Well, it’s Friday night. And you know what that means …
I read legal briefs.
Check out this brief when you have a second. This is the government’s brief explaining to a federal court why it is okay with Congress passing a vague law that (apparently) prevents debt collectors from using mail vendors because… who knows why.
Memory of the GM
This refers to the old Hunstein case (now vacant).
The government can be forgiven (by the tsar) for arguing that the Central Hudson Intermediate Control Test survives AAPC– even if it probably isn’t.
And I can live with – barely – the government arguing that Hunstein passes the intermediate examination test. May be hardly does the rule against disclosure of information to a seller directly advance a substantial government interest under CH… But I doubt it.
But where things stray from the rails of free society and sink deep into the dark, gloomy jungle of authoritarian autocracy is when the government argues that Hunstein is compatible with rigorous examination.
Absolutely not. Certainly not.
The government is arguing – presumably with a straight face, but I’m not sure – that Hunstein The FDCPA interpretation survives STRICT SCRUTINY (the highest level of constitutional review) because debt collectors can talk to sellers about other things by mail… but not about debt collection.
“The law leaves debt collectors free to communicate with these third parties in other contexts and for other purposes …”
So banning someone from speaking to a specific audience about a specific topic is totally acceptable from a government perspective, as long as they can talk about other things that you know aren’t that offensive. for the government.
OK. By this logic, a law that says you cannot discuss communism with a brochure publisher would be fine, as long as you are allowed to discuss other less disadvantaged matters with the local newspaper.
Want to talk about college football? Sure. Share your take on the right guacamole recipe? No problem. Discuss the preferred form of orderly society? Totally off limits.
I’m sorry folks, but it’s just crazy. The essence of the First Amendment – as applied in AAPC–Is the equal protection of ideas. To say that an expression restriction is perfectly acceptable, especially because it is content specific, is the ultimate exercise of legal jujitsu.
The law is unconstitutional precisely because it is content specific – that is not what saves it from people’s constitutional scrutiny.
Further, the government argues that speech should be deleted whenever it could “open the door” to other less favorable speech:
“Allowing communications from debt collectors to mail providers in connection with debt collection could open the door to exactly the type of privacy disclosure that Congress sought to prevent by enacting Section 1692c (b) – allowing , for example, to debt collectors to communicate with the courier. sellers who employ friends, neighbors or acquaintances of a debtor. “
Thus, the government is essentially conceding that the speech at issue in this case does not actually elicit the “type of privacy disclosure” that Congress genuinely cared about. But just because it could lead to such problems down the line (presumably in another context and with conduct initiated by another defendant), the law must be upheld as applied to that defendant.
No, no no, a thousand times no. It is the opposite of the way it is supposed to work.
Constitutional discourse should not be cooled because it could pave the way for unconstitutional discourse by other actors. Indeed, under the overbreadth doctrine, a defendant (in the past could and possibly still be) can assert the rights of a hypothetical speaker of constitutional speech to defend his own unconstitutional speech.
So, for example, a liar liar could avoid the effect of a defamation ban if the law was so broad or vague that it covered truthful speech, even though the defendant in that case was not engaging in truthful speech. . The First Amendment and the need to protect free speech were so critical that an outright fraudster could escape liability as long as a good guy could have been wrongly caught in the same trap.
It is what life is like in a free society. Clear laws. Minimum restrictions on speech. And only where unconstitutional speech is the target – or a law is really narrowly suited to a imperious government interest – can a content-specific law be applied.
Here we have the weird world argument put forward by the government – someone who gives a constitutional speech that causes no prejudice is subject to a restriction on speech simply because another bad actor might otherwise be allowed to do so. speech that is unconstitutional or causing harm, without restriction.
In other words, the government asserts that the law survives scrutiny “as applied” to the defendant in one case, simply because the law could survive scrutiny applied to another defendant.
This stuff makes me really sad.
I’m a big “free society” guy. And I sincerely believe that freedom does not only come from our men-at-arms – although they are courageous – it also comes (perhaps above all) from constitutional advocates and judges who do what it takes to protect us. society against possible government encroachment on our freedoms. And people need to see the big picture to make sure that we don’t lose our freedoms bit by bit.
Encroachment ALWAYS occurs in small steps and is usually activated by “common sense” needs, such as stopping abusive debt collection tactics or unwanted robocalls. Nobody comes down and says “give me all your freedom”. Instead, the government says, “Hate xy or z? Well give me some of your rights and we’ll take care of it for you.
So when we mindlessly reject (or water down) critical constitutional doctrines that protect our freedom and all that it means to be an American in order to (for example) extend the FDCPA to prevent sterile disclosures to a mail vendor …. we literally engage in the work of despotism.
It’s just lousy.
Look, I’m not saying the AUSAs who submitted this brief are bad people. But the big picture is definitely missed when a brief is submitted that suggests Huntin survives scrutiny. This is not the case. And the government doesn’t have to go that far to defend the law.
I had a LOT of respect for the decision of the Solicitor General’s office to drop the strict review angle by defending the TCPA in the Supreme Court in AAPC. I hope the government will rethink its position here as well, whether in this matter or in future litigation.
To support Hunstein it’s just not worth removing a close review like this, guys.
This is simply not the case.
© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 338