July 6, 2020
Decided July 6, 2020
Barr v. American Association of Political Consultants, Inc., No. 19-631
Today, the Supreme Court held 6-3 that the federal-debt-collection exception to the TCPA’s robocall ban violates the First Amendment, but also held 7-2 that the proper remedy is to sever the exception—leaving in place the entirety of the TCPA’s 1991 ban on robocalls.
The Telephone Consumer Protection Act of 1991 (TCPA) generally prohibits robocalls to cell phones and home phones. In 2015, Congress amended the Act to exempt robocalls to cell phones for collecting debts owed to or guaranteed by the federal government—including student-loan and mortgage debts—from the TCPA’s general prohibition.
Plaintiffs—a group of political and nonprofit organizations seeking to make robocalls—sued the U.S. Attorney General arguing that the 2015 government-debt exception violates the First Amendment by unconstitutionally favoring debt-collection speech over political and other speech. As relief, the plaintiffs sought to invalidate the TCPA’s entire robocall ban for cell phones, rather than only the 2015 government-debt exception. Plaintiffs’ theory was that the exception undermines the credibility of the purported privacy interest supporting the entire robocall ban.
The district court held that the 2015 government-debt exception was a content-based speech regulation, but that it survived strict scrutiny given the government’s compelling interest in collecting debt. The Fourth Circuit reversed, holding that the government-debt exception failed strict scrutiny. Applying traditional severability principles, the Fourth Circuit then concluded that the government-debt exception should be severed from the statute, leaving the TCPA’s robocall ban in effect.
1. Whether the government-debt exception from the TCPA’s robocall ban for cell phones violates the First Amendment.
2. If so, whether the TCPA’s entire robocall ban is unconstitutional.
1. The government-debt exception is a content-based speech restriction that impermissibly favors debt-collection speech over political and other speech in violation of the First Amendment.
2. The TCPA’s robocall ban stands because the government-debt exception is severable from the remainder of the statute.
“Congress has impermissibly favored debt-collection speech over political and other speech . . . As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”
Justice Kavanaugh, writing for a plurality of the Court
What It Means:
The Court’s opinion is available here.
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