District Court (Mo.) Allows Constitutional Challenge to TCPA to Proceed as an Affirmative Defense

In its first affirmative defense, Defendant asserts, in relevant part, “The Telephone Consumer Protection Act…violates the First Amendment of the United States Constitution on its face and as applied.” Plaintiff argues this defense is “legally insufficient” and should be stricken because it has been “foreclosed” by the Eighth Circuit, citing Nack v. Walburg, 715 F.3d 680, 682 (8th Cir. 2013). In Nack, though the Eighth Circuit did state it “held in Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649, 660 (8th Cir. 2003), the TCPA provisions regarding unsolicited fax advertisements were not an unconstitutional restriction upon commercial speech,” it also noted the holding of that case “would not necessarily be the same” as applied to defendant’s case. 715 F.3d at 682. However, because the defendant did not raise the issue with the lower court, the Eighth Circuit declined to reach the merits of this “as-applied” challenge to the TCPA. Id. Thus, Nack did not render Defendant’s First Amendment affirmative defense “legally insufficient,” and Plaintiff’s motion to strike Defendant’s first affirmative defense is denied.  In its second affirmative defense, Defendant asserts in relevant part, “The TCPA violates the Fifth and Fourteenth Amendments of the United States Constitution under the void-for-vagueness doctrine on its face and as applied.” Plaintiff argues this defense is “legally insufficient” because “other federal courts have ruled the TCPA is not void for vagueness.” However, Plaintiff cites no precedent from this Court or the Eighth Circuit to indicate Defendant’s void-for-vagueness affirmative defense would fail as a matter of law. Accordingly, Defendant fairly presents a matter of law which this Court should hear, and Plaintiff’s motion to strike Defendant’s second affirmative defense is denied