Realgy, LLC v. Roberta Lindenbaum, et al.

Last year, this Court held that the TCPA’s robocall restriction violated the First Amendment by excepting certain government speech. Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335 (2020) (AAPC). The Court severed the exception—but did not directly address the impact severance has on lawsuits like this one, which seeks to impose liability for pre-severance speech, when the restriction was content-based. The Sixth Circuit addressed that issue, becoming the first circuit to hold that speech could be penalized in an unconstitutionally discriminatory way. It stated that, because severance is always retroactive, the exception never existed and the restriction never perpetuated unequal treatment. This interpretation of severance creates ex post facto liability for favored speakers, a result Congress could not accomplish via severability clause. The Sixth Circuit surmised that favored speakers could not be sued for pre-severance speech because they lacked fair notice their speech was prohibited. Government speakers are thus shielded from past liability while other speakers are subject to punishment for past “political and other speech,” recreating the exact unequal treatment AAPC deemed unconstitutional and creating a circuit split on how severance operates. AAPC, 140 S. Ct. at 2341. And the panel ruled after denying Petitioner’s recusal motion, creating another circuit split. The questions presented are: 1. Did this Court sever the government exception retroactively, and if so, is it permissible to reimpose the unequal treatment that this Court held “violates the First Amendment” via the fair notice doctrine? (i)