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TCPA Constitutionality Oral Argument Heard at SCOTUS

A cell phone reciving a call from an unknown number.

Phone call from unknown number late at night. Scam, fraud or phishing with smartphone concept. Prank caller, scammer or stranger. Man answering to incoming call. Hoax person with fake identity.

The Supreme Court, fittingly, listened to an oral argument that could determine the future of the Telephone Consumer Protection Act (TCPA) via teleconference as a result of the COVID-19 pandemic. The suit, Barr v. American Association of Political Consultants, Inc. concerns the legality of the government-debt exemption to the TCPA. The question presented before the Supreme Court is “whether the TCPA’s cellphone-call prohibition is an unconstitutional content-based restriction of speech, and if so whether the Fourth Circuit erred in addressing the constitutional violation by broadening the prohibition to abridge more speech.” The exception, added in 2015, permits robocalls made to collect government-backed debts. The case questions whether that exception, if found to be unconstitutional, can be invalidated separately from the broader robocall ban.

The counsel for the government petitioners explained that “the Respondents’ basic theory is that the government-debt exception, taken in combination with other aspects of the statutory scheme, prevents the automated-call restriction from performing its intended consumer protection function, renders it insufficiently efficacious to be upheld under the First Amendment. And we think that’s wrong. If you look at the statute, the only other statutory exceptions to the automated-call restriction are those for emergency calls and calls with — made with the prior express consent of the recipient. And Respondents have not contended that either of those is — raises a First Amendment problem or casts doubt on the efficacy of the underlying restriction.”  

Chief Justice Roberts summarized the petitioner’s argument as examining the economic relationship between the parties to a call as opposed to the content of said call, in an attempt to avoid the scrutiny applied to content-based restrictions on speech. Roberts was skeptical, saying “You still have to look carefully at what’s being said before you can decide whether the phone call is covered by the provision or not. “

The petitioners pointed to Reed v. Town of Gilbert, which invalidated a city ordinance that restricted the placement and size of certain types of signs more than others. They distinguished the TCPA restriction from Reed, “Respondents haven’t been targeted in any — in any meaningful sense. Their political communications are subject to the same restrictions that apply to the vast, vast majority of automated calls.”

The government argued to sever the government debt exception if it was found to be unconstitutional. However, Chief Justice Roberts noted that the exception isn’t illegal by itself – it may only illegal as part of the broader TCPA. Because the exception is not individually illegal, it may not be severable. The government also argued that the ” ultimate question of severability is one of congressional intent, what result would Congress have preferred.”

Justice Thomas also noted that it seems that this exception removes speech from entities. Justice Kagan asked the Petitioner if the Supreme Court should look at the case as the robocall hindering speech or the exception creating the constitutional issue.

The respondents, the American Association of Political Consultants, said that political speech is at the core of the First Amendment, but the TCPA currently bans the communication tools to carry out that speech. They noted that the exception makes the ban itself unconstitutional because it undermines the government’s alleged interest in privacy. The Justices questioned argument; Justice Sotomayor asked if the remedy to the respondents’ complaint would be to permit the type of political speech they desire to make. However, Justice Ginsburg pondered if the technology used, not the content should be considered. Ginsburg noted, “And — and no one challenged that exemption for 20-odd years. One characterization is that this is really a manner of restriction. That is, it doesn’t prohibit calling, it doesn’t prohibit conveying a message; it just prohibits using a certain automated technology to call. So, it’s a manner of communication. It’s not a… restriction on the message.”

The Justices asked a significant number of questions about the “irony” of expanding an unconstitutional speech restriction as a remedy for successful First Amendment speech challenge and that striking the exception would harm non-parties. Justice Gorsuch summed it up, stating“Some of my colleagues have already noted the irony of a First Amendment challenge leading to the suppression of more speech as a remedy.”

Nine amicus curiae briefs were previously filed with the Court in support of the respondents, each arguing that unsolicited communication is important for them and that the TCPA prevents them from utilizing this type of communication. Briefs supporting the petitioner largely sought to ban robocalls in their entirety, stating these are a nuisance that can violate consumer privacy and could potentially be scams. Meanwhile, the respondent argued in its brief that the TCPA violates its First Amendment rights and that the ban should be lifted and this should be addressed “in ways consistent with the Constitution.”

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