On Monday, the Supreme Court issued a decision in Barr, et al. v. American Association of Political Consultants Inc., et al., affirming the Fourth Circuit’s judgment in a case concerning the government debt collection exemption to the Telephone Consumer Protection Act (TCPA). The opinion, written by Justice Brett Kavanaugh, found that “Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment,” as a result, the 2015 exception should be invalidated and severed from the TCPA. Consequently, the American Association of Political Consultants et al. cannot make political robocalls, but their speech will be treated equally to other speech, including debt-collection.
The suit, which was argued in May, questioned the legality of the government-debt exemption to the Telephone Consumer Protection Act (TCPA). Generally, the TCPA prohibits almost all robocalls made to phones. The 2015 amendment to the TCPA, the Bipartisan Budget Act, allowed for robocalls to be made to collect government-backed debts; the plaintiffs questioned if the exception was unconstitutional under the First Amendment, and if that exemption can be invalidated separately from the larger robocall ban.
The American Association of Political Consultants (AAPC) and other political or nonprofit entities argued that this exception violates the First Amendment; they wanted “to make robocalls to cell phones” and claim that the exception favors one type of speech over another based on its content. The AAPC has sought to invalidate the entire TCPA, not just the 2015 amendment. The District Court determined “that the robocall restriction with the government-debt exception was content-based but that it survived strict scrutiny because of the Government’s compelling interest in collecting debt. The Fourth Circuit vacated the judgment, agreeing that the robocall restriction with the government-debt exception was a content-based speech restriction, but holding that the law could not withstand strict scrutiny. The court invalidated the government-debt exception and applied traditional severability principles to sever it from the robocall restriction.” The Supreme Court has issued its opinion upholding and affirming the Fourth Circuit’s judgment.
Justice Kavanaugh, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, delivered the Supreme Court’s opinion. The Court concluded “that the 2015 government-debt exception violates the First Amendment” because it is content-based. The First Amendment’s free speech protections “provides that the government typically ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’” however, the “robocall-restriction, with the government-debt exception, is content-based because it favors speech made for the purpose of collecting government debt over political and other speech.” The Court added that the government’s arguments that the exception is “content neutral are unpersuasive.” Specifically, it does not “draw distinction based on speakers,” and the law “focuses on whether the caller is speaking about a particular topic and not, as the Government contends, simply on whether the caller is engaged in a particular economic activity.” They also noted that the robocall restriction does not survive strict scrutiny and that content-neutral laws are subject to a lower level of scrutiny.
The majority found that the “2015 government-debt exception is severable from the underlying 1991 robocall restriction.” The Court noted that “[e]ven if [the severability clause] did not apply to the exception, the presumption of severability would still apply.” Furthermore, the opinion found that the government “has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like.”
Justice Breyer, Justice Ginsburg and Justice Kagan in their opinion stated that they do not believe the exception violates the First Amendment and would have upheld the exception but given the opposing majority viewpoint agree that the exception is severable from the statute. The Justices agree in terms of severability, but dissent in part.