Monday, July 6, 2020
In its opinion in Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), exempting certain calls from the prohibition of robocalls violated the First Amendment.
Recall from our discussion when certiorari was granted that the federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice ("robocalls") subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government including mortgages and student loans. Recall also from our oral argument preview that the case involves the tension between marketplace of ideas and privacy.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA. To win, the challengers had to prevail on both arguments. However, a majority of the Justices found that while the exemption violated the First Amendment, it could be severed and so the prohibition in the TCPA applicable to the challengers remained valid.
As the plurality opinion expresses it:
Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.
Despite this seeming overwhelming agreement, there is no majority opinion and the opinions demonstrate a perhaps needless fragmentation of the Justices and complication of precedent.
- Kavanaugh's plurality opinion garnered support from Chief Justice Roberts and Justice Alito, with Thomas joining on the First Amendment issue applying strict scrutiny to a content-based regulation, but not on the severability issue (Part III).
- Sotomayor wrote a brief solo concurring opinion, concluding that although the First Amendment standard should be the more relaxed intermediate scrutiny, the standard was not satisfied. She agreed that severability of the exemption was proper.
- Breyer, joined by Ginsburg and Kagan, agreed that the provision was severable, but dissented on the First Amendment issue, finding that strict scrutiny should not apply and that the robocall exemption survived intermediate-type scrutiny ("The speech-related harm at issue here — and any related effect of the marketplace of ideas — is modest").
- Gorsuch, joined in part by Thomas, agreed that the exemption violated the First Amendment, but argued that it was no severable, or more accurately that severability should not be the issue. He argued that severing and voiding the government-debt exemption does nothing to address the injury the challengers claimed and it harms strangers to this lawsuit. The opinion calls for a reconsideration of "severability doctrine" as a whole, citing in a footnote Thomas's partial dissent in Selia Law just last week.
Thus while the outcome is clear, its ultimate basis is muddied.