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A while back I covered a critical TCPA story on the issue of official government messages suddenly being subject to the TCPA– and lawmakers potentially being liable for messages they sent.
Well the appellate court took a look at this one and, wouldn’t you know it– I was right!
In Perrong v. Broadford, 2025 WL 2825982 (3rd Cir. 2025) the court held the messages could not have violated the TCPA because they were sent by a state legislator in his official capacity and the government simply is not a person subject to the statute–at least not when messages are sent for the public benefit:
We do not cast doubt on the power of Congress to exercise powers “specifically authorized or delegated” to it. Garcia, 469 U.S. at 549 (citation omitted). But our constitutional structure “was designed in large part to protect the States from overreaching by Congress.” Id. at 551. We are thus hesitant to assume Congress would go so far as to hinder state legislators from communicating with their constituents by simply using the general prohibitory language in § 227(b)(1), especially when Pennsylvania House staff have decided these communications have “a clear legislative purpose and [serve the] public benefit.” JA 322. It would be a “big assumption” to presume Congress would “limit the freedom of State legislators” in this fashion. Tenney, 341 U.S. at 376. “It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents.” Federalist No. 56, at 379 (Hamilton) (Jacob E. Cooke ed., 1961). And this remains especially true for “the state legislature, where all the local information and interests of the state are assembled.” Id. at 380. Context suggests Congress would not “impinge on a tradition so well grounded in history and reason.” Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998) (quoting Tenney, 341 U.S. at 376).
Indeed, we hesitate to impose liability on state legislators when they act “not for their private indulgence but for the public good.” Tenney, 341 U.S. at 377. Here, it is evident that the calls were made for the “public benefit,” JA 322, rather than “private indulgence,” Tenney, 341 U.S. at 377. In one call, Bradford advertised an event “to help [constituents] connect to [a] health care coverage plan.” JA 283. In another call, Bradford informed constituents of an employment opportunity to “become a part of the 2020 census team and earn 27 dollars an hour.” JA 284. A third call informed constituents of a “document shredding event” hosted by Bradford “to help protect [constituents’] identity and get rid of those old documents taking up space.” JA 283. A different call notified constituents that Bradford’s office “can assist with questions on unemployment compensation, resources for small businesses and help [constituents] access government services” during the Covid-19 pandemic. JA 284. And another call let constituents know that Bradford was “hosting a Family Fair for residents of the 70th district” at a local zoo. JA 283. Such communications related to the health, safety and general welfare of the people clearly serve the “public good”—as opposed to any personal affairs or a re-election campaign. Tenney, 341 U.S. at 377. It is thus unsurprising that House Employees authorized them as being made for the “public benefit.” JA 322
The line between “public benefit” and “personal indulgence” is not very clearly defined and looks to be the lynchpin between legal and illegal government messages.
One could imagine “our favorite president” blasting residents of blue states with SMS messages to assuage that the military occupying their street corners are just there for their own protection, and checking in with residents of red states to remind them how he saved their beloved Cracker Barrel logo.
Are these messages in the public interest or just for personal indulgence? I suspect different courts may have different answers.
What is clear, however, is that political messages by candidates ARE covered by the TCPA– at least when regulated technology is used to send the message.
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