The US Supreme Court ruled Monday that an exception allowing robocalls to cell phones for government-debt collection is an impermissible exception to the law restricting nearly all other robocalls.
The court was asked to decide whether the law was a content-based speech restriction, and if so, whether the government-debt exception could be severed from the rest of the law and invalidated.
The question came to the Court through Barr v. American Association of Political Consultants, in which the American Assoc. of Political Consultants and the three other organizations claimed that the government-debt exception to the robocall restriction violated the First Amendment. In 2015, Congress amended the Telephone Consumer Protection Act of 1991, which prohibited nearly all robocalls to cell phones, by allowing robocalls to collect government-debt while still restricting political robocalls. The district court found that the restriction and exception was a content-based speech restriction, but that the exception survived strict scrutiny because the government had a compelling interest in collecting the debt. The US Court of Appeals for the Fourth Circuit vacated the district court’s ruling, holding that the law was a content-based speech restriction but that it did not withstand strict scrutiny. The appeals court invalidated the exception and severed the exception from the robocall restrictions. In other words, the court invalidated the government-debt exception and permitted the robocall restrictions to stand. In a complicated split decision, the Supreme Court affirmed the Fourth Circuit’s decision.
The plurality held that the law was a content-based speech restriction on the First Amendment. Writing for the plurality, Justice Brett Kavanaugh wrote:
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.
Kavanaugh also found that, based on the court’s precedent, specifically Reed v. Town of Gilbert, “a law this is content-based” is “subject to strict scrutiny.” Kavanaugh, with whom Chief Justice John Roberts and Justice Samuel Alito joined, said that the government-debt exception is not a compelling interest that satisfies strict scrutiny.
However, Justice Stephen Breyer, with whom Justices Ruth Bader Ginsburg and Elena Kagan joined, said that applying strict scrutiny in all cases of content-based discrimination is inappropriate. He stated that the First Amendment’s objectives were to protect the free marketplace of ideas, and “[this case] has next to nothing to do with the free marketplace of ideas or the transmission of the people’s thoughts and will to the government.” He wrote, “To reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect is to engage in an analysis untethered from the First Amendment’s objectives. And in this case, strict scrutiny is inappropriate.” Instead of strict scrutiny, Breyer said the court should apply intermediate scrutiny and found that the government-debt exception should survive intermediate scrutiny.
Justice Sonia Sotomayor, concurring in the judgment, stated that while she agreed with Breyer that strict scrutiny should not be applied to all content-based restrictions, she thinks that the government-debt exception fails intermediate scrutiny because it is not “narrowly tailored to serve a significant governmental interest.” She said that the government has not explained how “government-backed debt collection is less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt.”
Justice Neil Gorsuch, with whom Justice Clarence Thomas joined, agreed with Kavanaugh that strict-scrutiny applies, but he believes that he robocall ban, itself, unconstitutionally infringes on speech.
After finding that the government-debt exception failed strict scrutiny, the court had to decide “whether (i) to invalidate the entire 1991 robocall restrictions … or (ii) to invalidate just the 2015 government-debt exception and sever it from the remainder the statute.”
The court concluded that the government-debt exception should be invalidated and severed from the rest of the law. In his opinion, Kavanaugh found precedent for partial invalidation of a statute starting with Marbury v. Madison, and wrote, “Put in common parlance, the tail (one unconstitutional provision) does not wag the dog (the rest of the codified statute or the Act as passed by Congress).” Additionally, the court found an express severability clause in the Communications Act. Concluding his findings, Kavanaugh wrote, “the text of the Communications Act’s severability clause requires that the Court sever the 2015 government-debt exception from the remainder of the statute. And even if the text of the severability clause did not apply here, the presumption on severability would require that the Court sever the 2015 government-debt exception from the remainder of the statute.”
In addition to the jurists joining Kavanaugh’s opinion, Breyer, Ginsburg, Kagan and Sotomayor agreed that the government-debt exception is severable. Gorsuch and Thomas found that the severability of the statute is not permissible.
In all, six justices agreed that the government-debt exception is an unconstitutional content-based restriction on the First Amendment, five of whom applied strict scrutiny. And seven justices agreed that the government-debt exception should be invalidated and severed from the remainder of the statute.
