Tuesday, May 5, 2020
The Supreme Court will hear oral arguments on Wednesday in Barr v. American Association of Political Consultants, Inc., the case testing whether the general ban on automated calls to cell phones in the Telephone Consumer Protection Act is an impermissible content-based restriction on speech because the Act exempts calls to collect government owned debt. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Congress enacted the Telephone Consumer Protection Act of 1991 (TCPA) in order to protect individuals from the “nuisance” and “invasion of privacy” wrought by automated calls. Among other things, the TCPA prohibits any automated call to any cell phone number, except calls made for an emergency purpose or with the express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). While Congress was particularly concerned about automated telemarketing calls, the automated-call restriction is not limited to calls made to sell goods or services. Congress delegated authority to enforce the TCPA to the Federal Communications Commission (FCC).
In 2015, Congress added an exception to the automated-call restriction for calls “made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). The provision, called the “government-debt exception,” was designed to help the United States collect on debts “as quickly and efficiently as possible.” As part of the provision, Congress authorized the FCC to issue regulations “restrict[ing] or limit[ing] the number and duration of” these calls, so that the FCC could “protect consumers from being harassed and contacted unreasonably.” FCC regulations limit the government-debt exception to only those calls involving delinquent debt that the United States owns or guarantees, and where a caller has authority to accept payment and the recipient has a responsibility to pay.
In 2016, a group of political organizations and an association of political consultants, fundraisers, and pollsters sued the Attorney General and the FCC, arguing that the automated-call restriction, as amended by the government-debt exception, was a content-based restriction on speech in violation of the First Amendment. The plaintiffs sought a declaratory judgment that the automated-call restriction was unconstitutional on its face.
The district court ruled in favor of the government. The Fourth Circuit vacated the judgment and remanded for further proceedings. (The Fourth Circuit ruled that the government-debt exception was an impermissible content-based regulation on speech. But it then severed that exception from the broader automated-call restriction, and sent the case back to the district court to determine whether the automated-call restriction, now without the government-debt exception, violated free speech.) This appeal followed.
As a general matter, a content-based restriction on speech must be narrowly tailored, or necessary, to serve a compelling government interest. This test, called “strict scrutiny,” is the most demanding test known to constitutional law. It usually means that a content-based restriction on speech violates the First Amendment.
This case has a twist, though. The content-based portion of the automated-call restriction is in the government-debt exception (assuming, that is, that the government-debt exception is content-based—the first point of contention between the parties). The plaintiffs don’t challenge the government-debt exception alone (and that makes sense, because, after all, the exception allows speech); instead, they challenge the overall automated-call restriction based on the alleged impermissibly content-based government-debt exception.
And that leads to severability—the second point of contention between the parties. If the government-debt exception is a content-based regulation on speech, and if it therefore renders the entire automated-call restriction a content-based regulation on speech, then the Court may be able to save the automated-call restriction by simply extracting, or severing, the government-debt restriction—that is, by simply removing the offending portion.
The government argues that the government-debt exception is not a content-based restriction on speech. The government claims that the exception does not regulate speech based on its content, but rather based on “a certain kind of economic activity (the collection of government-backed debts).” To illustrate this point, the government says that the exception doesn’t apply unless the government owns or guarantees the debt, the caller has authority to collect the debt, and the debt is not delinquent—all requirements that do not relate to the content or message of the call. And to the extent that these requirements may touch on the content of the call, the government contends that these are not the kinds of things that typically trigger strict scrutiny.
Because the government-debt exception is not a content-based regulation of speech, the government argues that it is subject to a lower level of scrutiny, intermediate scrutiny, and that it passes. The government claims that the exception serves the “significant public and governmental interest in protecting the federal fisc,” and that the exception “directly advances” that interest by allowing automated calls to more efficiently collect on government debt. It says that the exception allows only a narrow range of calls for a limited purpose, and therefore sufficiently protects the privacy interests of those who are called.
Finally, the government argues that even if the government-debt exception is a content-based regulation of speech, the Court should sever it from the rest of the TCPA and leave the automated-call restriction intact. The government claims that the Act itself contains a severability provision that unambiguously requires severability, and that the history and purposes of the TCPA confirm “that Congress would have wanted the automated-call restriction to remain in effect independently of the government-debt exception.” (The government points to the fact that the automated-call restriction was on the books for 24 years before Congress added the government-debt exception.) The government contends that when the Court severs the government-debt exception, it removes the content-based regulation on speech (again, only assuming that the government-debt exception is a content-based regulation on speech) so that it can’t infect the rest of the Act—and so that the automated-call restriction can continue to stand.
The plaintiffs counter that the automated-call restriction is an impermissible content-based restriction on speech. The plaintiffs point to the government-debt exception to illustrate this. In short, they say that the automated-call restriction, including its government-debt exception, allows speech that “discusses only the collection of government-backed debt” but disallows speech on any other topic. The plaintiffs contend that fails strict scrutiny, because the government doesn’t have a compelling interest in protecting the public from unwanted communication, and, in any event, the “sweeping prohibitions” under the automated-call restriction “are far from the least restrictive means of furthering that interest.” (Indeed, they argue that “the statute is so hopelessly ill-tailored to the Government’s asserted privacy interest that [the automated-call restriction] fails any level of scrutiny.”)
The plaintiffs argue that the only appropriate remedy is to strike the automated-call restriction. They claim that Court precedent supports the idea that when a statute restricts speech based on content with exceptions that allow speech, the Court strikes the restriction, not the exceptions. Moreover, they claim that it’s the automated-call restriction, and not the government-debt exception, that harms them. The plaintiffs contend that the content-based discrimination reflected in the government-debt exception shows that the overall automated-call restriction is also content-based, and therefore unconstitutional. They assert that severing the government-debt exception (the provision that allows more speech) only to uphold the automated-call restriction (the provision that allows less speech) makes no sense when the First Amendment protects free (or more) speech.
Finally, the plaintiffs argue that the automated-call restriction violates free speech even if the Court severs the government-debt exception. They claim that the automated-call restriction is itself a content-based restriction on speech (even without considering the government-debt exception), and that it is “far broader than necessary to advance the narrow privacy interests the Government asserts.”
This ruling could have immediate and all-too-palpable significance for the estimated 96 percent of people in the United States who have a cell phone. Perhaps to state the obvious: a ruling for the plaintiffs could allow automated political calls to cell phones, right as the 2020 election goes into full swing. This could be a huge boon to those who seek to use automated-calling technology for political purposes (like the plaintiffs in this very case), but it could also be a huge drag to cell phone users who wish to avoid an onslaught of political calls on a device that was previously protected from them.
A ruling for the plaintiffs would effectively open up calls for other purposes, too, including commercial solicitations, advertisements, surveys, and the like.
But this is only if the Court rules (1) that the government-debt exception is a content-based restriction on speech, (2) that the government cannot justify the exception under strict scrutiny, and (3) that the government-debt exception therefore renders the entire automated-call restriction irremediably unconstitutional (because the government-debt exception cannot be severed). This is a tall order, even for a Court that has in recent years demonstrated an extreme preference for a free and open “marketplace of ideas”—and an equally extreme distaste for all manner of content-based regulations on speech.
Taking a step back from the particulars of First Amendment doctrine, here’s another way to think about this case: as a balance between, on the one hand, a free and open marketplace of ideas, involving our most highly valued speech (political speech), and, on the other, our need for and expectation of privacy from automated calls on our cell phones. At what point does the marketplace of ideas run into our expectation of privacy, on this especially private device?