Yesterday, a divided Supreme Court issued a plurality opinion in Barr v. American Association of Political Consultants, Inc.  (“Political Consultants”) striking down and severing a 2015 amendment to the TCPA, which exempts government debt collection calls (“government debt exemption”) from the statute’s general prohibition on calls to cell phones (“cell phone ban”).  The effect of this ruling was to affirm the Fourth Circuit’s decision and leave the cell phone ban intact.

A majority of justices agreed that the government debt exemption violated the First Amendment but disagreed as to everything else: whether strict or intermediate scrutiny governed the First Amendment analysis, whether the government debt exemption failed that analysis and whether the severability and equal protection principles applied by the plurality constitute an appropriate remedy.  In focusing on their disagreements, the Justices largely ignored the issue of political speech and the generous First Amendment protection usually afforded it.

The plurality opinion was drafted by Justice Kavanaugh, joined in full by Justices Robert and Alito and in part by Justice Thomas.  Kavanaugh began by offering this choice observation: “Americans passionately disagree about many things.  But they are largely united in their disdain for robocalls.”  (Kavanaugh Slip Op. at 1).  The plurality’s perception of public opinion appears to have been the main driver of its decision and the analysis used to reach its destination (upholding the TCPA) was relatively straightforward.

First, Kavanaugh found that the government debt exemption was a content-based restriction on speech subject to strict scrutiny and that the government conceded that the exemption could not survive strict scrutiny.  In doing so, Kavanaugh rejected the AAPC’s argument that Congress’s act of passing the government debt exemption in 2015, which permits what many consumers view as the most annoying and intrusive type of calls (debt collection), revealed that Congress did not have (or at least no longer had) a genuine concern for consumer privacy.  Instead, the AAPC contended, Congress was only concerned with collecting debt owed to the federal government.  But, wrote Kavanaugh, “As is not infrequently the case with either/or questions, the answer to this either/or question is “both.” Congress is interested both in collecting government debt and protecting consumer privacy.”  (Kavanaugh Slip Op. at 11). Second, Kavanaugh determined that severance was appropriate under both general severability and equal treatment principles, which allow unconstitutional laws to be cured by either “extending the benefits or burdens to the exempted class,” sometimes referred to as “leveling up or down.” (Kavanaugh Slip Op. at 17-20).

Justices Sotomayor, Breyer, Ginsburg and Kagan concurred in the judgment of the plurality with respect to severability, but wrote separately to emphasize their belief that strict scrutiny did not apply.  Sotomayor found that the government debt exemption failed intermediate scrutiny, while Beyer, Ginsburg, and Kagan found it did not and expressed concern that the plurality was using the First Amendment in a way that could “threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as a result of that public discourse.”  (Breyer Slip. Op. at 4).

Justice Gorsuch agreed with the plurality’s finding that the government debt exemption was subject to strict scrutiny and violated the First Amendment but disagreed as to why.  Of all of the Justices, Gorsuch was most sympathetic to the AAPC’s argument that the government’s consumer privacy rationale was suspect: “[If] the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, it’s hard to see how the government might invoke consumer privacy interests to justify banning political speech.”  (Gorsuch Slip Op. at 3).   Gorsuch and Thomas were also most concerned with protecting speech and affording the AAPC a real remedy.  Instead of severing the government debt exemption, which has the perverse effect of expanding the TCPA’s restrictions on speech, Gorsuch and Thomas would have “leveled up” — expanded the benefits afforded government debt collection speech to political speech by awarding the AAPC a novel remedy: an injunction prohibiting the TCPA’s application to political speech.  (Id. at 5).

Takeaways and stray observations:

  • The plurality opinion, which invalidates the government debt exemption, applies only prospectively.  This means that any collection calls made to collect a government debt from the date the government debt exemption was enacted in 2015, to the date that the district court enters final judgment on remand, cannot serve as a basis for TCPA liability.  (Plurality Slip Op. at 22, n. 12).
  • Remember Political Consultants did not challenge the constitutionality of the many other content-based exemptions to the cell phone ban, such as those for certain healthcare related calls and package delivery notifications, which are created by the FCC pursuant to its rulemaking authority under 47 U.S.C. § 227(b)(2)(c).  Such challenges have not been able to overcome procedural hurdles arising from the Hobbs Act and the Chevron deference doctrine, which is why that issue was raised in the district court by AAPC but later withdrawn.  Whether a successful challenge to these content-based exemptions, or the FCC’s power to make such content-based exemptions in the first instance, remains to be seen.  (For an illuminating discussion of the Hobbs Act and Chevron deference in the context of the TCPA, see generally PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 588 U.S. ___ (2019)). 
  • None of the Justices commented on the explosion of (often abusive) TCPA litigation, although Justice Gorsuch did make some defense-friendly observations regarding the changes in cell phone billing practices and technology from 1991, when the TCPA was enacted, to present.  (Gorsuch Slip Op. at 1-2).
  • Political Consultants likely spells the death knell for the petition for certiorari in the case of Charter Communications, Inc., et al. v. Gallion, which raises the same First Amendment issue (albeit in the context of commercial speech), and has been pending with the Court since December 2019.
  • The petition for certiorari in Facebook, Inc. v. Duguid is still very much alive and, indeed, Facebook filed a supplemental brief the day after Political Consultants issued urging the Court to address its one remaining question presented: the deepening circuit split with respect to the TCPA’s definition of “automatic telephone dialing system.”
    • As expected, on July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in Duguid on the second question presented, which concerns the interpretation of the term “automatic telephone dialing system.”  It also denied the petition for certiorari in Gallion.
  • While Political Consultants was a setback for political campaigns in election season, the FCC did recently issue a campaign-friendly ruling on person-to-person (P2P) text messaging platforms.  More to come on that in a future post.