FTSA ‘Unconstitutional’ Under Strict or Intermediate Scrutiny: Modani
Though all of plaintiff Jamil Hindi’s claims will fail when he alleges that Modani violated the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act by sending him automated marketing text messages, his FTSA claim “must be dismissed now…
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because it is unconstitutional.” So said the furniture retailer in a motion for partial dismissal with prejudice Friday (docket 0:22-cv-62219) in U.S. District Court for Southern Florida in Fort Lauderdale. The FTSA violates the First Amendment because “it restricts speech based on its content, so it is subject to strict scrutiny, which it fails,” said Modani. “Even if the FTSA were subject to intermediate scrutiny, it would be unconstitutional,” it said. The FTSA “cannot pass the rigorous requirements of strict scrutiny,” said Modani. A “compelling government interest of the highest order” -- for combating terrorism, for example -- “must support a speech restriction subject to strict scrutiny,” it said. “Curbing the minor annoyance of marketing text messages” isn't such an interest, it said. “Nor can the FTSA survive intermediate scrutiny, even assuming it applies,” said Modani. The FTSA is “far more extensive than is necessary to advance the purported government interest” of protecting consumers from unwanted text messages, it said. But it also leaves in place “unregulated speech that does even more harm to that interest,” it said. “The overbroad and poorly tailored speech restrictions of the FTSA thus render the law unconstitutional no matter what level of scrutiny applies.” Modani's motion for partial dismissal was its first answer to Hindi's Nov. 28 class action alleging the retailer inundated Floridians with 50 different unwanted text-message solicitations since July 1, including a November bombardment keyed to Black Friday promotions (see 2211280035).