The U.S. Supreme Court on July 6, 2020, issued its long-awaited opinion in Barr v. American Association of Political Consultants, which addressed whether a 2015 amendment to the Telephone Consumer Protection Act (TCPA) permitting automated calls to collect debts owed to or guaranteed by the federal government violated the First Amendment. In an unsurprising ruling, the U.S. Supreme Court affirmed the decision of the 4th U.S. Circuit Court of Appeals and invalidated the 2015 government-debt exception, but left intact the TCPA’s general prohibition on automated calls to cell phones without consent.
In Barr, the plaintiffs were political and nonprofit organizations that wanted to make automated political calls to cell phones. They argued that the 2015 government-debt exception unconstitutionally favored debt-collection speech over political and other speech in violation of the First Amendment. The Supreme Court agreed. As an initial matter, the court held that the government-debt exception is a content-based restriction on speech. As explained in the opinion, a law is content-based if it singles out specific subject matter for differential treatment. Justice Brett Kavanaugh, writing for the majority, declared that under the TCPA, a “robocall that says, ‘Please pay your government debt’ is legal,” but a “robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.”
Content-based restrictions on speech are subject to strict scrutiny, but the government had conceded it could not satisfy that standard. The government’s stated justification for the government-debt exception was collecting government debt. Although the Supreme Court said that “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.” Thus, the court held that the 2015 government-debt exception was unconstitutional.
The more controversial question, however, was how to remedy this problem. Following oral arguments in May, many watched this decision closely to see whether the court would invalidate the TCPA’s prohibition on automated calls to cell phones generally (as plaintiffs urged), or whether the court would instead invalidate and sever the 2015 government-debt exception (as the government urged).
The Supreme Court sided with the government. First, the court noted that the TCPA was adopted as an amendment to the Communications Act, which includes an express severability clause. According to the court, the severability clause “squarely covers the unconstitutional government-debt exception and requires that we sever it.” But even absent an express severability clause, the court explained that there is a longstanding presumption in favor of severability that would similarly require the court to sever the 2015 government-debt exception.
Though both the statute and precedent required the court to sever the unconstitutional portion of the statute, there remained “[o]ne final severability wrinkle” for the court to address — namely, the appropriate remedy for an equal-treatment constitutional violation. In this case, Congress violated the First Amendment equal-treatment principle by favoring debt-collection calls and discriminating against political and other calls. To remedy the violation, the court explained that it must decide whether to extend the benefits or burdens of the law to all, or to eliminate the law entirely. Plaintiffs sought to cure the unequal treatment by eliminating the TCPA’s ban on automated calls to cell phones completely, thereby permitting all automated calls to cell phones. In contrast, the government sought to cure the unequal treatment by prohibiting all automated calls to cell phones, regardless of content.
While the plaintiffs insisted that the court should not cure a First Amendment violation by outlawing more speech, the court found that a “generally applicable robocall restriction would be permissible under the First Amendment,” and, therefore, extending the automated call restrictions to all such calls to cell phones raised no First Amendment problem. Because the TCPA’s ban on automated calls to cell phones was “capable of functioning independently” of the government-debt exception, the Supreme Court decided to sever the exception and leave in place the TCPA’s ban on automated calls to cell phones. As a result, “plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”
For companies that previously were making automated calls to cell phones for the purpose of collecting on a government debt, the court noted that no company should be penalized or held liable for making such calls from the date the government-debt exception was enacted to the entry of final judgment by the district court, or on such other date the district court deems appropriate. But for other companies that were tracking this case in the hopes that the TCPA’s ban on automated calls to cell phones would be eliminated in its entirety, it is business as usual: The court left intact the TCPA’s ban prohibiting automated calls to cell phones without consent.