Text Messages and the TCPA

Once again – I don’t like text messaging as a marketing tool.  I think it’s sleazy and ineffective.  But as I pointed out before, Ohio – in issuing an ethics opinion saying solicitation by text is OK – was simply following Supreme Court precedent that written solicitation cannot be prohibited.

A number of commenters on Twitter have pointed out that the TCPA – the Telecommunications Consumer Protection Act – restricts text solicitation, suggesting that the Ohio attorney regulators could do the same.  But the TCPA doesn’t prohibit text solicitations. It is a content- and speaker-neutral regulation, and its application to text messages is limited to texts made using autodialers.  It doesn’t restrict a particular class of speaker, or even a particular type of message.  It simply prohibits a spammy method of distributing messages far and wide.

The sort of regulation that would prohibit a class of speakers (attorneys) from using a medium to communicate a certain type of message (a solicitation) – is entirely different.  It’s not a neutral “time, place and manner” regulation like the TCPA.  It would be a content-based restriction that would foreclose the avenue entirely, and thus would be presumptively invalid.

Now, the state could overcome that presumptive invalidity, and it would do so under the intermediate scrutiny standard applicable to commercial speech regulation.

But that brings me back to my original point: Ohio surely considered that.  And what they found was that an outright prohibition of a form of written solicitation doesn’t fly under the First Amendment. 1

Could there be something different about text messages?  More problematic than other forms of written communication?  Maybe, but I don’t see it.  And given how fast technology changes, and how people communicate (the TCPA itself being woefully long in the tooth), it’s best that Bars show restraint when considering the outright prohibition of forms of speech.

Notes:

  1. As the Supreme Court has ruled, twice, in In re Primus and Shapero v. Kentucky Bar.

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