16 Jul BAPCPA and Free Speech (Part 2)
The second section of BAPCPA that impacts the First Amendment Free Speech clause is the provision that forbids a Debt Relief Agency from giving (or not giving) certain advice. This is much more problematic as an infringement on the right to free speech as it clearly defines the content of what can be discussed. Such limits are held by the Supreme Court to the strictest of scrutiny under the law and a limitation can only be Constitutional if the government can show that it fulfills a compelling interest, is narrowly tailored to further that interest and is the least restrictive manner of accomplishing the stated goal.
Here, although Congress may be able to state a compelling interest for these provisions, it is doubtful if they will be able to show that the law as written furthers that interest in the least restrictive manner.
There are several cases on these subjects. For the most part, the amicus brief arm of NACBA is doing a terrific job monitoring, examining and supporting efforts challenging the constitutionality of BAPCPA.
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