Telephone Consumer Protection Act

Barr v. American Association of Political Consultants, Inc., No. 19-631, 2020 WL 3633780 (U.S. July 6, 2020)

*             Procedural History of the Case

Plaintiffs; political and nonprofit organizations seeking to make political robocalls to cell phones discussing candidates and issues, soliciting donations and conducting polls; filed a declaratory action against U.S. Attorney General William Barr and the Federal Communications Commission (“the government”), asserting that the 2015 exception to application of the Telephone Consumer Protection Act (“TCPA”) to calls collection government-debt violates the First Amendment to the United States Constitution because the exception was content-based speech that does not survive strict scrutiny.

The district court in which the case was filed agreed with Plaintiffs that the government-debt exception was content-based speech but concluded that it was constitutional because it survived strict scrutiny due to the government’s compelling interest in collecting debt. The Court of Appeals agreed that the exception was content-based speech, subject to strict scrutiny, but concluded that it did not survive strict scrutiny, severing it from the TCPA. The Government filed a petition for writ of certiorari to the United States Supreme Court because the Court of Appeals invalidated the government-debt exception. Plaintiffs supported the petition, arguing that the Court of Appeals did not go far enough, and should have not simply severed the unconstitutional provision but rather invalidated the entire TCPA.

*             Justice Kavanaugh’s Opinion

Justice Kavanaugh announced the judgment of the Court, and delivered an opinion joined by Chief Justice Roberts, Justice Alito and in part by Justice Thomas. Holding that the government debt exception was content-based speech, Justice Kavanaugh stated “[u]nder § 227(b)(1)(A)(iii), the legality of a robocall turns on whether it is ‘made solely to collect a debt owed to or guaranteed by the United States.’ A robocall that says ‘Please pay your government debt’ is legal. A robocall that says ‘Please donate to our political party campaign’ is illegal.  That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”

In reaching this conclusion, Justice Kavanaugh addressed and rejected three arguments advanced in support of a conclusion that the government-debt exception was content-neutral. First, the government argued that the government-debt exception draws distinctions based on speakers, not content. Rejecting this argument, Justice Kavanaugh stated that the government-debt exception singled out calls “‘made solely to collect government debt owed to or guaranteed by the United States,’ not calls made from authorized debt collectors.” Even if this were not the case, the fact that a distinction is speaker based does not automatically render the distinction content-neutral.

Second, the government argued that the legality of the government-debt exception simply depended on whether a caller is engaged in a particular economic activity not the content of the speech. Disagreeing, Justice Kavanaugh stated “[t]he law here focuses on whether the caller is speaking about a particular topic.” Third, the government argued that if the government-debt exception is content-based because it singles out debt-collection speech, then so too are statutes regulating debt collection such as the Fair Debt Collection Practices Act. Noting the government’s concern was “understandable,” Justice Kavanaugh stated that “courts have generally been able to distinguish impermissible content-based speech restrictions from traditional or ordinary economic regulation of commercial activity that imposes incidental burdens on speech. The issue before us concerns only robocalls to cell phones. Our decision today on that issue fits comfortably within existing First Amendment precedent. Our decision today is not intended to expand existing First Amendment doctrine or to otherwise affect traditional or ordinary economic regulation of commercial activity.”

As noted previously, Plaintiffs argued that the unconstitutionality of the government-debt exception required invalidation of the entire TCPA, not simply severance of the provision. According to Plaintiffs, the governments’ asserted interest in the TCPA is “consumer privacy.” But Congress’s willingness to enact the government-debt exception “betrays newfound lack of genuine concern for consumer privacy.” Thus, according to Plaintiffs, “if Congress no longer has a genuine interest in consumer privacy, then the underlying 1991 robocall restriction is no longer justified (presumably under any level of heightened scrutiny) and is therefore now unconstitutional.” Recognizing that Plaintiffs’ argument “was not without force,” Justice Kavanaugh nonetheless “ultimately disagreed with it,” stating that addition of the government-debt exception does not cause the Court to doubt the credibility of Congress’s continued interest in protecting consumer privacy, adding that the simple reality is that Congress has competing interests. The growing interest in collecting consumer debt does not mean Congress suddenly lacks a genuine interest in restricting robocalls.

Justice Kavanaugh concluded that the government-debt exception should be severed from the TCPA for several reasons. First, since 1934, the Communications Act has contained an express severability provision which “squarely covers the unconstitutional government-debt exception.” Additionally, even if the severability clause did not apply, Supreme Court precedent has developed a strong presumption of severability.

Finally, in a footnote, Justice Kavanaugh noted that “although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the government-debt exception, and before entry of final judgment by the district court on remand in this case, or such date that the lower courts determine is appropriate. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

*             Justice Sotomayor’s Concurrence

Justice Sotomayor wrote separately, noting her agreement with much of Justice Breyer’s partial dissent that strict scrutiny should not apply to the government-debt exception, but concluding that the exception did not survive intermediate scrutiny because the government had not explained how a debt-collection robocall about government-backed debt is any less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt. Justice Sotomayor did, however, agree that the government-debt exception was severable.

*             Justice Breyer’s Partial Concurrence and Dissent

 Joined by Justices Ginsburg and Kagan, Justice Breyer concluded that the government-debt exception does not violate the First Amendment. According to Justice Breyer, the problem with the plurality’s approach is that it reflexively applies strict scrutiny to all content-based speech distinctions, which is divorced from First Amendment values. Specifically, the case before the Court primarily involves commercial regulation—namely debt collection, which does not provide a basis to apply strict scrutiny based on content discrimination because the First Amendment was “’fashioned to assure unfettered interchange of ideas for the brining about of political and social changes desired by the people.’” To reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect is to engage in an analysis untethered from the First Amendment’s objectives. Debt collection has next to nothing to do with the free marketplace of ideas or the transmission of the people’s thoughts and will to the government. It has everything to do with the second side of the equation, that is, with government response to the public will through ordinary commercial regulation. To apply the strictest level of scrutiny to the economically based exemption here is thus remarkable.

Justice Breyer advocated application of an intermediate scrutiny test, concluding that the government-debt exception survived such scrutiny. But noting that “a majority of the Court, [ ] has concluded to the contrary,” he agreed with Justice Kavanaugh’s conclusion that the government-debt exception is severable.

*             Justice Gorsuch’s Partial Concurrence and Dissent

 Justice Gorsuch agreed with Justice Kavanaugh that the government-debt exception regulated content-based speech which does not survive strict scrutiny, noting “it is easy enough to see why the government makes no effort to satisfy strict scrutiny. Now that most cell phone plans do not charge by the call, the only justification the government cites for its robocall ban is the interest in protecting consumer privacy. No one questions that protecting consumer privacy qualifies as a legitimate and ‘genuine’ interest for the government to pursue. But before the government may censor the plaintiffs’ speech based on its content, it must point to a compelling interest. And if the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, it’s hard to see how the government might invoke consumer privacy interests to justify banning private political speech.

Justice Gorsuch, joined by Justice Thomas, departed from the other Justices regarding the remedy that should be afforded Plaintiffs, concluding that Plaintiffs were entitled to an injunction preventing enforcement of the TCPA against them. Noting that this is the traditional remedy for proven violations of legal rights likely to work irreparable injury in the future Justice Gorsuch stated that Plaintiffs “came to court asserting a right to speak, not a right to be free from other speakers. Severing and voiding the government-debt exception does nothing to address the injury they claim; after today’s ruling, federal law bars the plaintiffs from using robocalls to promote political causes just as stoutly as it did before. What is the point of fighting this long battle, through many years and all the way to the Supreme Court, if the prize for winning is no relief at all?”

A copy of the opinion can be seen by clicking here.