SCOTUS Invalidates Government Debt Collection Exception to Robo Call Ban

In Barr v. American Association of Political Consultants Inc., 591 U. S. ____ (2020), the U.S. Supreme Court held that the exception to the Telephone Consumer Protection Act of 1991 that allows calls to collect government debt law violates the First Amendment. However, the Court further held that the exception is severable from the rest of theTelephone Consumer Protection Act of 1991.

Facts of the Case

In response to consumer complaints, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA) to prohibit almost all robocalls to cell phones. In 2015, Congress amended the robocall restriction, carving out a new government-debt exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States.

The American Association of Political Consultants and three other organizations that participate in the political system filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First 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 Court of Appeals vacated the judgment. While it agreed that the robocall restriction with the government-debt exception was a content-based speech restriction, it held 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.

Supreme Court’s Decision

By a vote of 6-3, the Supreme Court affirmed. In a plurality opinion, the Court held that the 2015 government-debt exception violates the First Amendment. Justice Brett Kavanaugh authored a plurality opinion, which was fully joined by Chief Justice John Roberts and Justice Samuel Alito. Justice Clarence Thomas joinedwith regard to the First Amendment analysis in Part I, but disagreed with respect to the remedy devised by the Court in Part II.

In his opinion, Justice Kavanaugh first acknowledged how annoying robocalls can be. “Americans passionately disagree about many things,” he wrote. “But they are largely united in their disdain for robocalls.”

Justice Kavanaugh next noted that the Free Speech Clause provides that government generally “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” He then cited Reed v. Town of Gilbert, 576 U. S. 155 (2015), under which a law is content-based if “a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Under Reed, that description applies to a law that “singles out specific subject matter for differential treatment.”

Applying this precedent to Section 227(b)(1)(A)(iii)’s robocall restriction, the plurality concluded that the government-debt exception is content based because it favors speech made for the purpose of collecting government debt over political and other speech. As Justice Kavanaugh explained:

Under §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 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.

Because the robocall restriction with the government-debt exception is content-based, the Court determined that it must be subject to strict scrutiny. It further concluded that the government could just meet the high-bar. Justice Kavanaugh wrote:

The Government concedes that it cannot satisfy strict scrutiny to justify the government-debt exception. We agree. The Government’s stated justification for the government-debt exception is collecting government debt. Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.

The plurality next turned to the proper remedy for the First Amendment violation. It held that the 2015 government-debt exception is severable from the underlying 1991 robocall restriction. “[T]he text of the Communications Act’s severability clause requires that the Court sever the 2015 government- debt exception from the remainder of the statute,” Justice Kavanaugh wrote. “And even if the text of the severability clause did not apply here, the presumption of severability would require that the Court sever the 2015 government-debt exception from the remainder of the statute.” He added:

With the government-debt exception severed, the remainder of the law is capable of functioning independently and thus would be fully operative as a law. Indeed, the remainder of the robocall restriction did function independently and fully operate as a law for 20-plus years be- fore the government-debt exception was added in 2015.