The Federal Trade Commission has joined the Department of Justice and the Consumer Financial Protection Bureau in filing a memorandum in support of the constitutionality of the Fair Credit Reporting Act.
This issue arose in Shamara King v. General Information Services, Inc., a "consumer class action based upon Defendant’s willful violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x. (“FCRA”)." In her complaint, Ms. King brought suit "on behalf of thousands of employment applicants throughout the country who have been the subject of prejudicial, misleading and illegal background reports performed by the Defendant and sold to employers. Defendant has adopted and maintained a policy and practice of knowingly, intentionally, recklessly and willfully reporting outdated adverse information that is required to be excluded from the consumer reports that it sells."
The defendant GIS then moved to dismiss the case, claiming that FCRA was unconstitutional:
In sum, [the Supreme Court's decision in] Sorrell [v. IMS Health] marks a dramatic shift in the protection afforded to content- and speaker-based restrictions on truthful commercial information. As the dissent in Sorrell noted, its holding has sweeping effects on many other laws restricting disclosure of commercial information, including FCRA. Because a prohibition on disclosure of truthful information regarding an individual’s criminal record falls squarely within Sorrell’s holding, [the FCRA] is unconstitutional. Accordingly, the Court should enter judgment on the pleadings in favor of GIS on Plaintiff’s [FCRA] claim.
This is certainly a creative defense, although it may be asking more than a federal district court is willing to do. It could be very interesting to see this argument get to an appellate court.