IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

Case No. 0:22-cv-62219-WPD 

JAMIL HINDI, individually and on behalf of 

all others similarly situated, 

Plaintiff, 

v. 

MODANI FORT LAUDERDALE, LLC, 

Defendant. 

DEFENDANT’S PARTIAL MOTION TO DISMISS 

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TABLE OF CONTENTS 

I. Introduction ......................................................................................................................... 1 

II. Factual Background ............................................................................................................ 1 

III. Standard of Review ............................................................................................................. 2 

IV. Argument: The Court Should Dismiss the FTSA Count Because the Statute 

Violates Federal and State Constitutions ............................................................................ 2 

A. Strict Scrutiny, Not Intermediate, Applies Because the FTSA Is a Content-Based 

Regulation of Only a Disfavored Subset of Commercial Speech ....................... 3

B. Like Most Speech Restrictions, the FTSA Fails Strict Scrutiny ......................... 6

C. The FTSA Fails Intermediate Scrutiny Because It Is Far More Extensive than 

Necessary to Accomplish the Government Interest.......................................... 8

V. Conclusion ........................................................................................................................ 10 

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I. Introduction 

In this putative class action lawsuit, Plaintiff Jamil Hindi alleges that Defendant Modani 

Fort Lauderdale, LLC violated the Telephone Consumer Protection Act (TCPA) and the Florida 

Telephone Solicitation Act (FTSA) by sending him automated marketing text messages. Although 

all his claims will ultimately fail for a host of independent reasons, his FTSA claim must be 

dismissed now because it is unconstitutional. In particular, the FTSA violates the First 

Amendment. It restricts speech based on its content, so it is subject to strict scrutiny, which it 

fails. And even if the FTSA were subject to intermediate scrutiny, it would be unconstitutional. 

First, the FTSA does not satisfy the onerous requirements of strict scrutiny. Initially, 

scrutiny applies under recent Supreme Court precedent because the FTSA restricts “marketing, 

that is, speech with a particular content,” but not other types of content. Sorrell v. IMS Health, 

Inc., 564 U.S. 552, 564 (2011). But the FTSA cannot pass the rigorous requirements of strict 

scrutiny. A compelling government interest of the highest order, like combating terrorism, must 

support a speech restriction subject to strict scrutiny, for example, and curbing the minor 

annoyance of marketing text messages in not such an interest. And the FTSA is wildly under and 

over-inclusive, including because it severely restricts marketing and other communications but 

permits all manner of non-commercial speech that is more disruptive and annoying. For disfavored 

speech, in fact, the FTSA even purports to impose crippling class action liability for 

communications that consumers specifically requested. But scammers, companies, and political 

candidates can make unlimited calls with no consent at all—so long as the subject matter includes 

speech the legislature finds acceptable (including, of course, speech soliciting political donations).

There is no justification for this disparate speech treatment, so the FTSA fails strict scrutiny. 

Nor can the FTSA survive intermediate scrutiny, even assuming it applies. The statute is 

not only far more extensive than is necessary to advance the purported government interest 

(protecting consumers from unwanted communications) but leaves in place unregulated speech 

that does even more harm to that interest. The overbroad and poorly tailored speech restrictions 

of the FTSA thus render the law unconstitutional no matter what level of scrutiny applies. 

The Court should grant Modani’s motion and dismiss the FTSA claim with prejudice. 

II. Factual Background 

Plaintiff alleges that he received text messages from Modani beginning in May 2022. See 

ECF 1 ¶¶ 13-18. Based on these messages, Plaintiff claims Modani violated the FTSA by 

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contacting him with “an automated system for the selection or dialing of telephone numbers” 

without first obtaining express written consent. Id. ¶¶ 65-67. 

Nowhere in the Complaint, notably, does Plaintiff deny that he provided Modani with his 

phone number directly, or that he was a Modani customer. See generally id. 

III. Standard of Review 

A complaint must contain “a short and plain statement of the claim showing that the pleader 

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Claims based on unconstitutional laws must 

also be dismissed. See Ex parte Siebold, 100 U.S. 371, 377 (1880) (“if the laws are 

unconstitutional and void, the [federal court has] no jurisdiction of the causes”); see also 

Montgomery v. Louisiana, 136 S. Ct. 718, 724 (2016) (sentence under unconstitutional law is void 

because state was deprived of authority to impose it). 

IV. Argument: The Court Should Dismiss the FTSA Count Because the Statute Violates 

Federal and State Constitutions. 

Plaintiff’s FTSA claim fails because the subsection on which he relies violates the First 

Amendment.1 Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (explaining government 

generally “has no power to restrict expression because of its message, its ideas, its subject matter, 

or its content”). That subsection restricts “a person” from making only “a telephonic sales call” 

(but not calls with non-sales content) if “such call involves [a] an automated system for the 

selection or dialing of telephone numbers or [b] the playing of a recorded message when a 

connection is completed to a number called without the prior express written consent of the called 

party.” Fla. Stat. § 501.059(8)(a). 

As clarified below, this provision triggers First Amendment scrutiny because it imposes a 

burden on constitutionally protected speech. See, e.g., Sorrell, 564 U.S. at 565. And regardless 

of which level of scrutiny applies—recent Supreme Court authority mandates strict—the contentbased regulation fails. See Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2346 

(2020) (“AAPC”) (pl. op.) (invaliding commercial speech exception under strict scrutiny because 

1 The protection for free speech under the Florida State Constitution is co-extensive with the 

First Amendment. See, e.g., Dickerson v. Stuart, 877 F. Supp. 1556, 1559 n.1 (M.D. Fla. 1995); 

Fla. Const. art. 1, § 4 (“No law shall be passed to restrain or abridge the liberty of speech . . . .”).

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“[c]ontent-based laws are subject to strict scrutiny.”); Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 

163 (2015) (similar); see also Sorrell, 564 U.S. at 571-72. 

A. Strict Scrutiny, Not Intermediate, Applies Because the FTSA Is a Content-Based 

Regulation of Only a Disfavored Subset of Commercial Speech. 

To begin with, the FTSA is a content-based regulation of speech subject to strict scrutiny 

because its prohibition on using an automated system to make calls applies only to “telephonic 

sales call[s],” Fla. Stat. § 501.059(8)(a), which are defined as telephone calls, text messages, or 

voicemails sent “for the purpose of soliciting a sale of any consumer goods or services, soliciting 

an extension of credit for consumer goods or services, or obtaining information that will or may 

be used for the direct solicitation of a sale of consumer goods or services or an extension of credit 

for such purposes,” id. § 501.059(1)(j) (emphasis added). The FTSA therefore “disfavors 

marketing, that is, speech with a particular content.” Sorrell, 564 U.S. at 564. Because its 

applicability turns on the topic discussed and the message expressed, the statute is content based 

and thus subject to strict scrutiny. See Reed, 576 U.S. at 163 (“Government regulation of speech 

is content based if a law applies to particular speech because of the topic discussed . . . [Such laws] 

are presumptively unconstitutional and may be justified only if the government proves that they 

are narrowly tailored to serve compelling state interests.”) (cleaned up).2

Indeed, the FTSA is not a content-neutral, generally applicable regulation on commercial 

speech, which might be subject to the less exacting (but still demanding) standard of intermediate 

scrutiny. In Central Hudson, the Court defined “commercial speech” as “expression related solely

to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. 

Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980) (emphasis added). The Court 

reaffirmed that the First Amendment “protects commercial speech from unwarranted 

governmental regulation,” id. at 562, but also recognized that, because the government has long 

regulated commercial transactions, the Constitution “affords a lesser protection to commercial 

speech than to other constitutionally guaranteed expression,” id. at 563. Rather than strict scrutiny, 

2 Furthermore, another provision in the FTSA prohibiting calls to phone numbers on the 

state’s “no sales solicitation calls” list applies only to “unsolicited telephonic sales calls,” Fla. Stat. 

§ 501.509(4), which are defined to exclude, among other things, calls by “a newspaper publisher 

or his or her . . . employee in connection with his or her business,” id. § 501.509(1)(k). This 

separate provision therefore “disfavors specific speakers,” i.e., non-newspaper marketeers. 

Sorrell, 564 U.S. at 564. 

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government regulation of commercial speech would have to satisfy intermediate scrutiny. Id. at 

564. 

But the FTSA regulates both commercial and non-commercial speech, taking it outside of 

Central Hudson’s orbit. Subsection 8(a) prohibits using auto dialers and pre-recorded messages 

to make a “telephonic sales call,” including a call “for the purpose of . . . obtaining information 

that will or may be used for the direct solicitation of a sale of consumer goods or services or an 

extension of credit for such purposes.” Fla. Stat. § 501.059(1)(j) (emphasis added). Information 

that “may be” used for marketing cuts a wide swath, and could include information such as income 

level, marital status, political affiliation, and racial ethnicity. 

Consider an academic using pre-recorded messages to collect information for research. His 

speech is not commercial as it does not relate solely to economic interests, but it would fall within 

the plain language of the FTSA. Whereas the prohibition in Central Hudson restricted commercial 

speakers’ (electric utilities) commercial message (advertising), see 447 U.S. at 558-59, the FTSA 

extends to non-commercial messages from non-commercial speakers. So the FTSA requires 

judicial scrutiny beyond the Central Hudson standard. 

Nor did Central Hudson hold that the government can regulate commercial speech in a 

discriminatory manner without triggering strict scrutiny. And the Supreme Court’s recent, 

controlling AAPC decision dictates that content-based regulation of commercial speech is indeed 

subject to strict scrutiny. That case concerned the legality of a provision of the TCPA dealing with 

automated and pre-recorded calls (i.e., robocalls)—one that exempted calls “made solely to collect 

a debt owed to or guaranteed by the United States” but imposed liability on all others for the same 

calls. AAPC, 140 S. Ct. at 2344-45 (quoting statute). 

Although communications about debt collection fall within the definition of “commercial 

speech,” the Supreme Court in AAPC still applied strict scrutiny, as the law was “as content-based 

as it gets” because a robocall that says, “pay your government debt” is legal but one that says, “pay 

your mortgage” is not. Id. at 2346. Regulation of commercial speech in a content-discriminatory 

manner is thus still subject to strict scrutiny. Id.; see also Sorrell, 564 U.S. at 566 (“[c]ommercial 

speech is no exception” to the First Amendment’s non-discrimination principles). 

The Sixth Circuit recently confirmed that Reed and AAPC stand for that principle. In City 

of Troy—the only circuit decision to address the issue since AAPC—the court held that “the 

intermediate-scrutiny standard applicable to commercial speech under Central Hudson applies 

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only to a speech regulation that is content-neutral on its face,” but “a regulation of commercial 

speech that is not content-neutral is still subject to strict scrutiny under Reed.” Int’l Outdoor, Inc. 

v. City of Troy, 974 F.3d 690, 703 (6th Cir. 2020) (citation omitted). The Sixth Circuit reasoned 

that AAPC had “repudiated the approach taken earlier by” other circuit courts that applied Central 

Hudson even to content-discriminatory regulations of commercial speech. Id.

To be sure, several district courts have applied the Central Hudson standard to the FTSA, 

but their reasoning is unpersuasive. Preliminarily, none recognized that the FTSA regulates both

commercial and non-commercial speech, as explained above. They also misread Central Hudson 

for more than it holds. Pariseau, for instance, applied intermediate scrutiny because “neither Reed 

nor Barr overturns Central Hudson.” Pariseau v. Built USA, LLC, 2022 WL 3139243, at *6 (M.D. 

Fla. Aug. 5, 2022). This observation misses the point, however, because Central Hudson never 

stood in opposition to the teachings of Barr and Reed. Each operates in a different sphere: Barr

and Reed for content-based laws, and Central Hudson for content-neutral regulations of 

commercial speech. Central Hudson has never stood for the illogical principle that any regulation 

of commercial speech, no matter how content- or even viewpoint-discriminatory, needs only 

satisfy intermediate scrutiny. 

Pariseau also incorrectly cited Sorrell v. IMS Health for the proposition that intermediate 

scrutiny applied to content-based regulations of commercial speech. But Sorrell didn’t say that. 

It held that “a specific, content-based burden on protected expression,” i.e., commercial speech, 

warrants “heightened judicial scrutiny.” 564 U.S. at 565. The Court left open exactly what that 

heightened scrutiny entails but held that the state had to “at least” satisfy the Central Hudson

standard. Id. at 572 (emphasis added). The insertion of “at least” is meaningful; as Justice Breyer’s 

dissent in Sorrell recognized, the “heightened” scrutiny the majority adopted “suggest[ed] a 

standard yet stricter than Central Hudson.” Id. at 588 (Breyer, J., dissenting). 

Because the statute in Sorrell failed even intermediate scrutiny, the Court had no occasion 

to specify exactly what its “heightened scrutiny” entailed. See id. at 571 (majority opinion) (“As 

in previous cases, however, the outcome is the same whether a special commercial speech inquiry 

or a stricter form of judicial scrutiny is applied.”). But today, given AAPC and City of Troy, it’s 

clear that a majority of Supreme Court Justices, and the Sixth Circuit, believe that the appropriate 

“heightened scrutiny” for content-based regulations of commercial speech is strict scrutiny. 

This Court should join them. 

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B. Like Most Speech Restrictions, the FTSA Fails Strict Scrutiny.

A law survives strict scrutiny only if it is “narrowly tailored to serve compelling state 

interests.” Reed, 576 U.S. at 163. It is “the rare case” in which a speech restriction survives strict 

scrutiny. Williams-Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015). The “hopelessly underinclusive” 

FTSA is not that rare case. Reed, 576 U.S. at 171. 

First, there is no compelling state interest in prohibiting text messages like those Plaintiff 

allegedly received. Compelling interests are “of the highest order” and include “combating 

terrorism, protecting election integrity, [and] remedying the effects of past unconstitutional race 

discrimination.” Williams-Yulee, 575 U.S. at 445, 446; Willey v. Harris Cnty. Dist. Att’y, 27 F.4th 

1125, 1131 (5th Cir. 2022). Protecting listeners from negative reactions (such as annoyance or 

anger) doesn’t meet that high bar. See, e.g., Sorrell, 564 U.S. at 575 (“Many are those who must 

endure speech they do not like, but that is a necessary cost of freedom.”); Cohen v. California, 403 

U.S. 15, 21 (1971). 

Now consider text messages. Texts do not tie up phone lines, are less intrusive than phone 

calls, are easy to ignore, and can be deleted or blocked with the press of a button. And texts 

messages solicited by recipients (like Plaintiff) are even less intrusive. The interest served by 

applying Subsection 8(a) to Modani’s speech is thus not compelling. The FTSA fails strict scrutiny 

for this reason alone. 

To be sure, some courts have characterized the FTSA’s purpose more broadly as 

“consumer protection and privacy,” Turizo v. Subway Franchisee Advert. Fund Tr. Ltd., No. 21-

CIV-61493-RAR, 2022 WL 2919260, at *10 (S.D. Fla. May 18, 2022), or “residential privacy and 

tranquility,” Pariseau, 2022 WL 3139243, at *6. But even assuming such interests to be 

compelling, defining the governmental purpose in that way mandates the conclusion that the FTSA 

is not narrowly tailored because it is both under- and over-inclusive. See, e.g., Simon & Schuster, 

Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 123 (1991) (Blackmun, J., 

concurring in the judgment) (explaining that a statute failed narrow tailoring for being both 

“underinclusive as well as overinclusive”). The FTSA fails strict scrutiny for this independent 

reason, as well. 

As to under-inclusivity, the FTSA is poorly tailored because other kinds of automated text 

messages could annoy and harass consumers far more intensely than informational commercial 

texts (particularly those sent at the recipient’s request). “A law cannot be regarded as protecting 

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an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it 

leaves appreciable damage to that supposedly vital interest unprohibited.” Republican Party of 

Minn. v. White, 536 U.S. 765, 780 (2002). The FTSA allows all sorts of automated text 

messages—for example, unlimited debt collection texts messages, text messages soliciting 

donations from charities or from fringe political candidates with abhorrent and salacious platforms, 

and so on—which could well cause greater annoyance than the texts Modani sent Plaintiff. And 

these messages may be sent in any quantity without any consent. By contrast, because of their 

content, Modani is forbidden by the FTSA to send texts providing information about its credit card 

that a customer expressly asked for, unless it also makes a litany of hyper-technical written 

disclosures and obtains the customer’s signature. And even then Modani is limited to three 

messages in 24 hours. Fla. Stat. § 501.616(6)(b). 

If the goal is truly to prevent mass text messages that consumers find annoying, the FTSA 

could have simply banned all automated text messages. But it is hard to see politicians voting for 

that solution when their own election fundraising depends on automated texts (and prerecorded 

calls). Of course, the whole point of the First Amendment is that government officials cannot treat 

their own speech more generously than those of ordinary citizens. And the purpose of an 

independent judiciary is to protect those citizens’ rights when politicians transgress constitutional 

bounds. 

Similarly, the FTSA might have chosen to ban all commercial speech using automated 

texts. What is the justification for prohibiting marketers of consumer goods and services from 

using automated tools and prerecorded messages, but not other kinds of commercial speakers? 

The Act’s lack of legislative findings leaves it to the Court to guess. 

The FTSA is also over-inclusive because “a less restrictive alternative would serve the 

Government’s purpose.” United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000). An 

obvious alternative would be to require automated texts to include easy options for consumers to 

opt out (such as by texting back STOP) and to mandate that companies immediately honor such 

responses. Doing so would allow dissemination of information while leaving customers in control 

of the messages they receive, rather than preventing consumers from receiving messages that they 

affirmatively want and ask for, as the statute currently does. 

On this point, the FTSA permits using an auto-dialer or playing a recorded message with 

the “prior express written consent” of the recipient. Fla. Stat. § 501.059(a)(8). That term is defined 

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to require “a written agreement” bearing the recipient’s signature and a “clear and conspicuous 

disclosure” of the terms of the agreement and the consumer’s freedom not to sign the agreement 

as a condition of purchasing any product or service. Id. § 501.059(1)(g). But no evidence suggests 

that a written agreement, or the elaborate disclosure, is necessary to ensure that a consumer’s 

consent is voluntary and knowing. A simple, verbal consent could easily protect consumers just 

as well, particularly when coupled with an automatic and immediate opt-out mechanism. 

Indeed, as this case shows, the FTSA’s byzantine prior express written consent requirement 

could lead to enormous claims by customers who supplied their own phone numbers to companies 

and requested the communications (just not in the prescribed form). It thus encourages private 

citizens to trick companies into contacting them and then hope for a payoff based on technical 

violations of the prior express written consent requirement. This scheme, which opens companies 

up to ruinous liability for sending messages consumers ask for (even in writing), is surely not the 

least restrictive alternative possible to advance consumer protection and privacy. Instead, it’s a 

trap for businesses without large sophisticated legal departments, which have faced hundreds of 

class action lawsuits since the statute’s private right of action was enacted less than a year ago. 

And it should be struck down under strict scrutiny. 

C. The FTSA Fails Intermediate Scrutiny Because It Is Far More Extensive than 

Necessary to Accomplish the Government Interest. 

Even if intermediate scrutiny applied, the FTSA still could not stand. In Central Hudson, 

the Supreme Court described a three-prong inquiry for assessing regulations of commercial speech 

that “is neither misleading nor related to unlawful activity”: a valid regulation must (1) “directly 

advance[]” (2) a “substantial” government interest and (3) be no “more extensive than is 

necessary.” Cent. Hudson, 447 U.S. at 566. That test is far from toothless, as these cases show, 

and compels the same conclusion as strict scrutiny—invalidation of the FTSA. Ocheesee 

Creamery LLC v. Putnam, 851 F.3d 1228, 1236 (11th Cir. 2017) (“the burden is on the government 

to produce evidence to support” each prong of this three-part test.”). 

In Central Hudson itself, for example, the Supreme Court struck down New York’s ban on 

promotional advertising by electrical utility companies. 447 U.S. at 571-72. Although conserving 

energy was a substantial state interest that was directly advanced by limiting advertising, the 

regulation failed the third prong about fit. Id. at 568-69. That is because some advertising would 

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have been for efficient products and services that do not increase energy usage, and the state could 

have just “restrict[ed] the format and content of . . . advertising” rather than banning it. Id. at 570. 

Sorrell is similarly instructive. There, the Court determined that Vermont’s restriction on 

selling physician prescribing information for marketing purposes sought “to suppress a disfavored 

message” and therefore could not survive even intermediate scrutiny. 564 U.S. at 572. Here, too, 

the FTSA allows certain technologies (using an automated system or a recorded message) “to be . 

. . used by all but a narrow class of disfavored speakers,” i.e., those marketing consumer goods or 

services. Id. at 573. Vermont tried to say its ban protected doctors from harassing sales behavior. 

Id. at 575. But the Court did not see “why remedies other than content-based rules would be 

inadequate,” and it noted that doctors can decline to meet with pharmaceutical sales 

representatives. Id.

The reasoning in Central Hudson and Sorrell applies with full force to this case, compelling 

the conclusion that the FTSA is far “more extensive than is necessary” to advance consumer 

protection or to safeguard consumer privacy. Cent. Hudson, 447 U.S. at 566. Indeed, consumers 

are free to disregard, block, or immediately opt out of unwanted texts. The alternatives mentioned 

above—such as requiring an automatic opt-out mechanism—would (even better) achieve the 

FTSA’s goals but ban and chill far less speech. Those alternatives would allow messages 

consumers want and immediately prevent those that they do not—a far better balance under the 

First Amendment than the clumsy mechanisms the FTSA wields. The law thus fails the tailoring 

prong for all the same reasons it fails strict scrutiny. 

Notably, the courts that have upheld the FTSA did not apply the third prong of Central 

Hudson correctly. In Turizo, for instance, the court approved the FTSA’s autodialer provision 

because (1) it limits the use of autodialers but does not outright prohibit them and (2) it leaves 

open other means of advertisement. 2022 WL 2919260, at *11. Neither rationale is persuasive. 

That favored speakers can use autodialers, while disfavored speakers cannot, cuts against the 

statute’s constitutionality not for it. And focusing on what speech isn’t prohibited does not affect 

whether the enacted speech restriction is necessary. Emphasizing that question thus misses the 

point, as speakers bringing First Amendment challenges always have other channels of 

communication available to them (including in the many cases in which the Supreme Court has 

struck down the regulation at issue). 

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V. Conclusion 

Plaintiff’s Complaint relies on a Florida statute that violates the First Amendment through 

an under- and over-inclusive regime. The FTSA cannot satisfy either strict or intermediate scrutiny 

because it is far more extensive than is necessary to advance the purported government interest, 

and it leaves unregulated speech that does far more harm to that purported interest. Accordingly, 

Plaintiff’s FTSA claim should be dismissed with prejudice. 

Dated: December 30, 2022. 

KABAT CHAPMAN & OZMER LLP

/s/ Matthew A. Keilson 

Ryan D. Watstein* 

Florida Bar Number 093945 

rwatstein@kcozlaw.com 

Matthew A. Keilson 

Florida Bar Number 1002294 

mkeilson@kcozlaw.com 

171 17th Street NW, Suite 1550 

Atlanta, Georgia 30363 

(404) 400-7300 

(404) 400-7333 Fax 

*Lead Counsel 

Counsel for Defendant 

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RULE 7.1(3) CERTIFICATION 

Because Modani seeks dismissal for failure to state a claim, this motion is exempted from 

the pre-filing conferral requirements of Local Civil Rule 7.1.(3). 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that today, I electronically filed the foregoing with the Clerk of the 

Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of 

record. 

/s/ Matthew A. Keilson

Matthew A. Keilson 

Counsel for Defendant 

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